April 12, 2024

Executive Order Disorder

By Douglas Cohn and Eleanor Clift

WASHINGTON – The most significant takeaways from President Barack Obama’s State of the Union Address are contained in one phrase: “Executive Orders.” Every president has used them. President Bill Clinton was overruled by the Supreme Court when he attempted to deny federal contracts to companies that employed strike breakers as was President Harry Truman when he attempted to take control of the steel mills.

But those were exceptions. The rule has generally been an acceptance of the practice which was derived from the Constitution’s “executive power” clause. This was reinforced when the Supreme Court, relying on the presentment clause (Congress must present bills to the president for signing or vetoing, not the other way around), ruled that Congress cannot veto a presidential executive order. The result is a presidency empowered to a degree never envisioned by the Founding Fathers.

This has led to the current president’s apparent assertiveness with a deadlocked Congress. With Democrats controlling the Senate and Republicans controlling the House, little has been accomplished, and obstruction has been the order of the day.

The solution? Seven times in his State of the Union Address President Obama threatened to use executive orders to circumvent Congress:

“But America does not stand still – and neither will I.  So wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do. . . .

“We’ll need Congress to protect more than three million jobs by finishing transportation and waterways bills this summer.  But I will act on my own to slash bureaucracy and streamline the permitting process for key projects . . . .

“Businesses plan to invest almost $100 billion in new factories that use natural gas.  I’ll cut red tape to help states get those factories built . . . .

“And while we’re at it, I’ll use my authority to protect more of our pristine federal lands for future generations. . . .

“In the coming months, I’ll build on that success by setting new standards for our trucks, so we can keep driving down oil imports and what we pay at the pump. . . .

“In the coming weeks, I will issue an Executive Order requiring federal contractors to pay their federally-funded employees a fair wage of at least $10.10 an hour . . . .

“I intend to keep trying, with or without Congress, to help stop more tragedies from visiting innocent Americans in our movie theaters, shopping malls, or schools like Sandy Hook.”

This unprecedented use of executive orders may be applauded by people who benefit or support the particular issues – and most people do agree with one or more – but is it democracy? Rather, it appears to be government by presidential fiat, a dangerous short-term fix to congressional dithering and backbiting that we may live to regret.

During World War II, President Franklin Roosevelt ordered the internment of all Japanese-Americans living on the West Coast. He did so without congressional approval or consultation. His infamous Executive Order 9066 was more than wrong. It was a unilateral assertion of power that overrode our constitutional checks-and-balances system, yet instead of learning from that not-to-distant history, we, Congress, and the Supreme Court continue to stand aside as each president pushes the envelope a little farther.

In the end, the executive order will prove to be a disease, not a cure – an executive order disorder.

© 2014 U.S. News Syndicate, Inc.
Distributed by U.S. News Syndicate, Inc.
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