As I browse social media and the news, I have been seeing many people talk with great confusion about what constitutes an executive order, the constitutionality of such orders and what powers if any the court has to strike down such an order.
In fact, the issue is so confusing that both sides have presented incorrect or incomplete evidence on the matter, depending on whether or not their preferred political party is in power, and justices have decided the use of such powers mainly across their own partisan lines, as opposed to the constitution.
Today, we are going to clear up what an executive order is, whether or not this power can be found in the Constitution and the modern day opinions of the court on such issues.
First off, an executive order is identical to a law. When the president writes and subsequently signs an executive order, it’s seen as a guideline for existing agencies. The new order overrides any such agencies received from Congress or any other authority. As a result, once an executive order is signed, not only does it function as law, but it cannot be overturned by the congress.
The order has dictatorial power until the president decides to cease or replace the order, or it is taken to the Supreme Court to determine the validity of such an order. Furthermore, executive orders are subject to the Constitution, but in specific instances are given great leniency in doing things that would otherwise be unconstitutional especially when these powers are used to direct the military. Examples of such executive orders would be torture and drone strike policy which have changed our global image for better or for worse, and killed tens of thousands, many of whom were innocent civilians.
So now that I have explained what an executive order is, we have to look for whether or not any such order is constitutional. While the modern day courts have claimed they are constitutional, in doing so they have cited no constitutional phrase or wording of the document to validate such powers.
As a person who adheres to strict textualism [for more information see my article on jurisprudence], I have to conclude they cannot be constitutional because of the combination of Article 1 Section 3, and the 10th Amendment to the US constitution.
Under these, the presidential powers are outlined. The president is granted little to no power, other than to advise existing agencies how to carry out law, and very few wartime powers only after a congress has declared war.
The 10th Amendment clarifies that all powers not specifically delegated, including executive powers, are reserved to the states or people. This nullifies the argument an individual can do whatever they please so long as the constitution does not forbid it.
Although courts have deferred generally to the President and disagree with my opinion on executive order, they tend to agree with what the second partisan politics forces them to. As an example, President Trump’s “Muslim Ban” is functionally identical to President Obama’s 100+ day travel ban during his presidency, and yet that order was not found to be unconstitutional by the liberal leaning courts of the time, mainly because it was their guy breaking the law.
As a result, the current legal philosophy behind executive orders is, “It’s ok for you to be a dictator so long as you are my dictator,” leading to very confusing and contradictory rulings across the past 200 years of our country’s history.
Now that we have explained both the legitimate legal interpretation, and that of the cheerleader courts, we can talk about whether or not executive orders are a good or fundamentally bad idea for the United States.
My personal problem with them is simple, presidents should not be able to unilaterally pass laws with no accountability to the people. In a representative democracy, it’s intentionally difficult to pass new laws. There is a requirement of 30 states in favor of your law, and additionally for roughly 45-55 percent of the United States population’s representatives to be in favor of your law (the house, which is not perfectly divided in district size).
Any law must pass both the popular vote test and the state vote test, meaning California is as important as North Dakota when considering a new law. The executive order however, requires no such consensus either at the state or popular vote level.
The classic example of this potential pitfall is President Ford, who despite never winning an election was able to pass 169 laws without ever needing to consider the beliefs of the people.
Additionally, due to the fact that executive orders reign supreme over congressional mandate, it’s impossible to overturn them without a new a president, once again going against the checks and balances of a democracy. In short, executive orders are the path to tyranny and have no place in a representative democracy or republic.
Dave Owen is a staff writer for The Dakota Student. He can be reached at [email protected]