In his first 6 hours in the Oval Office, new President Joe Biden signed 17 executive orders. A passel of them reversed the executive orders of former President Donald Trump.
Some dealt with immigration and oil-delivery or drilling programs — DACA, the Mexico border wall, the Keystone Pipeline, and the Arctic Wilderness Reserve.
You could say most of them are welcomed by immigration reformists and environmentalists. Not so welcomed by Trump’s anti-immigration and pro-oil-and-coal supporters or by the big oil/coal companies.
I’ll leave the worth or unworthiness of the new, more liberal-minded Biden executive orders for others to judge. My aim today is to question the worthiness of the executive order use in general.
I am bothered by the prospect of one president issuing a load of executive orders right up to his/her final day in office — sometimes only for 4 years — and the next president countermanding those with a new set of orders. The people affected by those orders can’t efficiently move forward because the next White House occupant may turn everything upside down.
The term executive order is not defined in the Constitution. It’s open to the interpretation of each president. Executive orders are sometime huge mandates like the ones Trump signed that send objectors screaming. Others have been used for simple changes such as giving federal workers the day off after Christmas. There was absolutely no objection to that one.
A new president apparently can modify, revoke or supersede orders implemented by any previous president. The judicial branch can challenge an order by declaring it unconstitutional or illegal. Some judges did just that with some Trump orders. It’s too early to tell if any Biden orders will run into the judicial wall.
I cannot say with any authority that executive orders are unconstitutional, but I do say it looks like a use of a legislative power that belongs in the Congress. Presidents can propose laws, but only the people can pass them. The way it is now, if a president’s proposal stalls out in Congress, he slips it into effect by declaring an executive order.
This has been hanging around as a danger sign since George Washington first used it in 1789 and the Founding Fathers said nothing, like maybe “Hey, guy, we didn’t authorize that in the Constitution!”
Only president William Harrison did not issue a single executive order. All along the line to today’s #46, presidents claimed that Article 2 gives them broad authority to use their discretion (orders) to determine how to enforce law. There’s never been any movement to clear that up. Presidential executive orders remain in force until they are canceled, revoked, adjudicated to be unlawful, or expire. At any time, the president may revoke, modify, or make exceptions from any executive order that was made by any predecessor.
Is that good? I say no. I repeat that Congress was meant to manage law. And executive orders being revocable, they cause uncertainly on the part of those who are subject to them.
The most egregious use of the power was when President Harry Truman signed executive order 10340 that placed all of the country’s steel mills under federal control. That one got knocked down by the Supreme Court as unlawful and excessive use of power.
But look at how many far-reaching executive orders Trump promulgated with hardly a peep from the SCOTUS justices.
My personal judgement that it’s a bad habit is not based on my reading of the Constitution. It’s my sense that the executive order power bypasses our “people’s government”, and then with a stroke of a new pen a successor president can change things all around without asking me — the citizen who makes or rejects laws.