In his first three days in office, President Biden signed a total of 19 executive orders. This is in contrast to President Trump’s one, Obama’s five, Bush’s zero, and Clinton’s one. Barack Obama’s use of executive orders over the course of his presidency is remembered as especially unconstitutional — a fact Obama even admitted repeatedly — but something is different today. Why is Obama’s former vice president using executive orders far more than his predecessor ever did?
Firstly, what is the proper constitutional definition and purpose of an executive order? Article II of the Constitution invests the president with executive authority (meaning the authority to “execute” the implementation of law), and the lone responsibility to “take care that the laws be faithfully executed.” According to the Heritage Foundation, “When the president lawfully exercises one of these responsibilities, scholars generally agree, the scope of his authority to issue executive orders and other directives is especially broad,” but “an executive order can [only] be used to execute a power the commander in chief already has.”
This means that the president, being the chief executive, does have the right to issue such orders, though, depending on the subject and circumstance, they can be subject to Congressional or judicial review. Ronald Reagan, for instance, actually issued more executive orders than Obama — 381 to 276 — but the number of orders is not as important as their content and whether the Framers intended them to be used for the purpose under consideration. Conservatives vehemently criticized Obama for unilaterally creating law from the Oval Office which the legislative branch had not passed. Obama himself summarized this with his now rather infamous statement about having a “pen and a phone,” and using “the pen to sign executive orders and take executive actions… that move the ball forward….”
Moving the “ball forward” means moving away from the Framers’ outline of the government’s relationship to the people. Obama’s executive orders mainly focused on implementing legislation for which he knew the American people as a whole did not vote. The most controversial of Obama’s executive orders was DACA (Delayed Action for Childhood Arrivals), which granted temporary amnesty to millions of illegal aliens who had arrived in the country as minors. One in-depth poll found that only about 20% of voters in the 2014 mid-term elections supported this action. DACA, for example, was and is completely unconstitutional, and Obama knew and openly said that it was. An example of a constitutional executive order is when President Trump in 2019 issued an executive order to fight anti-Semitism on college campuses. This, unlike DACA, was simply a call for the government to enforce long-existing legislation more effectively — in this case, Title VI of the 1964 Civil Rights — by adopting the International Holocaust Remembrance Alliance (IHRA)’s definition of anti-Semitism.
The reason why this reliance on executive orders is so troubling is that a president’s agenda cannot be, so to speak, “rammed through.” It must be in keeping with the people’s wishes as represented by the votes of the Congress.
Moving forward to the present, Biden’s executive orders are firmly in line with Obama’s, but in far greater abundance. Here is a list of the highlights:
- A mask mandate, which is both unconstitutional under the Tenth Amendment and scientifically questionable.
- Rejoining the Paris Climate Agreement. While it may not be unconstitutional per se, when Obama originally joined it in 2015, he never submitted the agreement to the Senate as a treaty (like with the Iran deal), so that he (and now Biden) could work round Congress.
- An order which aims at “embedding equity across federal policymaking and rooting out systemic racism and other barriers to opportunity from federal programs and institutions.” This is a social engineering initiative, not a detailed policy proposal, and one which abolishes the Trump administration’s “1776 Commission,” which aimed to combat the anti-American propaganda of The New York Times’ “1619 Project.”
- An order reversing of President Trump’s so-called “Muslim ban” — which was neither a “Muslim ban,” nor unconstitutional — therefore allowing untold numbers of unvetted immigrants from anti-American societies into the country, who very well may pose a terrorist threat.
- Ordering ICE to release all illegal aliens held in detention at the border. This, just like all “sanctuary city” efforts across the country, contravenes (constitutional) federal immigration law, and is, therefore, illegal — at least until the Democrat-controlled Congress changes those laws. (Interestingly, as of now, ICE plans to deport an illegal alien living in New York in defiance of the order.)
- Punishing public schools if they do not allow biological boys to compete in sporting activities as girls — which has been called “erasing women.” Again, this is a social engineering project, which is not the purview of the federal government, and which most Americans oppose.
Obviously, the 13 orders not mentioned there — cancelling the Keystone XL Pipeline and halting construction of Trump’s border wall, for instance — are of grave concern to conservatives, but, from a purely constitutional point of view, these are the most symbolic of how this administration plans to govern us. Needless to say, Obama promptly praised Biden for his inaugural flurry of executive fiats.
This is a momentous time in American history, because only one time before has a president relied almost entirely on executive orders to implement his agenda, and that was Franklin Roosevelt, who signed 3,721 of them. Roosevelt’s policies laid the foundations — if not more — for the massive administrative state which controls our lives today. If governing is to be carried about by the will of one man, then we must brace ourselves for a troubling return to a period when government for the sake of government is the philosophy. This kind of government is not answerable to the people, and constitutes a major threat to the Constitution’s authority.
Policies can be liked or disliked, but this is different. We had a taste of rule by executive order under Obama, and the consequences were traumatic. Should the American people get used to this barely precedented negation of their sovereignty?
By Barry Nussbaum, Son of Auschwitz survivors, Founder American Truth Project, Foreign and Domestic Policy Commentator