Written on Monday, January 28, 2013 by David L. Goetsch
In Obama’s America, “we the people” has been replaced by “me the president.” On just one day—January 16, 2013—President Obama signed more executive orders than most of his predecessors signed during their entire time in office. While it is true that presidents since Washington have used presidential directives, known since 1862 as executive orders, no president has over used them like Barack Obama. Further, no president has so blatantly used them to subvert the will of Congress by legislating from the White House. What Barack Obama cannot convince the Congress to do, he does with executive orders as if he was elected king rather than president.
Executive orders have been signed by both Democrat and Republican presidents, typically relating to mundane and non-controversial issues. But the neither the issue in question—no matter how important or inconsequential—nor the party of the president makes executive orders legal or right. President Reagan’s executive orders were just as illegal as President Obama’s. As Americans we elect Congressmen and Senators to make laws and presidents to enforce them. Executive orders undermine this constitutional separation of powers and, in turn, our republican form of government.
No matter how frustrated and impatient with Congress a president becomes, he has no authority to circumvent the elected representatives of the people and act as dictator or monarch. Article I, Section 1 of the Constitution reads: “All legislative powers herein granted shall be vested in a Congress of the United States…” This means the president has no legislative powers. Article II, Section 1 of the Constitution reads: “The executive power shall be vested in a President of the United States of America…” Article II, Section 3 then clarifies that the executive power vested in the president is limited to executing the law. The exact language of this section is: “The President shall take care that the laws be faithfully executed…” The Constitution is clear. The president may suggest laws to Congress and veto laws passed by Congress, but he cannot make laws. Congress passes laws and the president enforces them. Hence, executive orders are illegal because they represent de facto legislation.
The courts have not been vocal in raising the issue of presidents legislating from the White House, but in cases that have come before them on this issue their rulings have been clear. For example, in 1952 in Youngstown Steel & Tube v. Sawyer—a case in which President Truman bypassed Congress and ordered the steel mills seized—the court said: “In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his function in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.”
The solution to the abuse of presidential power through the use of executive orders is for Congress to stand up for representative government. Presidents get away with using executive orders to circumvent Congress only because Congress allows them to. Congress caved in on the issue during the 106th Congress in the 1999-2000 session when it failed to pass H.R. 2655. This bill should be resurrected and passed.
It will do the following:
* Establish a statutory definition of a presidential order.
* Make it easier to challenge the legality of presidential orders in court.
* Define the specific constitutional powers the president may exercise by presidential order.
* Terminate the powers and authority currently held by the president on the basis of national emergencies.
* Vest the authority to declare national emergencies in Congress alone.
* Repeal the ineffective War Powers Resolution
Congress must stand up to the president and assert its Constitutional authority or risk becoming the irrelevant lapdog of an increasingly powerful president/dictator/monarch.