Executive orders are the real looming Constitutional Crisis

Joe Biden breaks Donald Trump’s first week record with 22 executive orders, one of which has already been halted by the courts.  The increasing scope of executive orders is almost certain to provoke an honest-to-goodness crisis in the not too distant future, and yet next to no one is talking about the damage waiting to be done.

“I’ve got a pen, and I’ve got a phone,” former President Barack Obama famously declared when facing Congressional gridlock.  “I am going to be working with Congress where I can to accomplish this, but I am also going to act on my own if Congress is deadlocked,” he explained. “I’ve got a pen to take executive actions where Congress won’t, and I’ve got a telephone to rally folks around the country on this mission.”

While executive orders have been around since George Washington, their usage by both parties when in power has changed dramatically in recent decades.

Obama, for example, issued executive orders on dreamers and amnesty that he previously said were illegal.  As NPR reported at the time, “After six years of often bitter back-and-forth with congressional Republicans over the issue of immigration, President Obama announced he has decided to go it alone by temporarily shielding up to 5 million immigrants from being deported.”

At the announcement, Obama even said straight up that he was issuing an order because he couldn’t get the legislation he wanted.  “To those members of Congress who question my authority to make our immigration system work better, or question the wisdom of me acting where Congress has failed, I have one answer: Pass a bill,” Obama said. “I want to work with both parties to pass a more permanent legislative solution. And the day I sign that bill into law, the actions I take will no longer be necessary.”

Previously, however, he said, “I am not king. I can’t do these things just by myself.”  In March 2011, with “respect to the notion that I can just suspend deportations through executive order, that’s just not the case.” In May of the same year, he admitted a President can’t “just bypass Congress and change the law myself…That’s not how a democracy works.”

This is not to pick on the former President in particular.  The number and, more importantly, the far reaching extent of executive orders is a phenomenon embraced by both parties when they are in power.  Former President Trump also got in on the act, issuing a controversial executive order to fund construction of the border wall from sources previously allocated to other uses, among many others. I’m certain liberal readers have a long list.

To put the modern reliance on executive orders in perspective, consider that George Washington issued only 8.  John Adams 1.  Thomas Jefferson 4.  James Madison and James Monroe 1.  John Quincy Adams 3.  We only hit the double digits with Andrew Jackson, who issued 12.  In the entire first century of the Republic, the only President to exceed 100 was Ulysses S. Grant, who issued 217 during Reconstruction and Grover Cleveland who issued 113 in his first term.

Since 1980, however, Ronald Reagan issued 381, George Bush 166 (in one term), Bill Clinton 364, George W. Bush 191, Barack Obama 276, and Donald Trump 220, also in one term.  Meaning there have been 1,698 executive orders over the past 40 years, compared to merely 794 in first 100 years after the ratification of the Constitution.

To be sure, there were some heavy hitters in the first half of the 20th century.

Franklin D. Roosevelt remains the reigning Executive Order Champion with a whopping 3,721 himself.  Woodrow Wilson is second with 1,803, and even Silent Cal Coolidge had 1,203.  These numbers don’t tell the whole story, however.  The data comes from UC Santa Barbara, and they note “this table does not include other forms of written presidential orders (such as memorandums), or discretionary executive actions not accompanied by a published presidential directive.”

Either way, Joe Biden is getting off to a running start, having issued 22 in his first week in office, continuing a record setting trend with Trump having issued 14, topping Obama’s 13.

This is not to suggest that there is anything wrong with Presidents issuing executive orders in general.  While not explicitly spelled out in the Constitution, the power derives directly from Article II where the Executive is charged with taking “Care that the Laws be faithfully executed.”  Executive orders are how a sitting President instructs the government to implement laws.

The problems begin when the orders run afoul of existing law, though even this isn’t an entirely new phenomenon either.  Abraham Lincoln controversially suspected Habeas Corpus in 1861 and emancipated slaves in the confederate states in 1863.  Perhaps the most controversial of all was FDR mandating internment of Japanese Americans in 1942.

The mechanism to adjudicate executive orders that go beyond the legal bounds is the courts (to be precise Congress can, with a veto proof majority, pass a law overriding an order, more on that later).  Like laws themselves, executive orders are subject to legal review, and federal courts up to and including the Supreme Court can nullify an order.  For example, in 1952 President Harry Truman issued an order seizing control of steel mills in the Korean War.  The Supreme Court ruled that Truman’s order violated due process and the order was overturned.

This is where potential Constitutional Crisis looms, perhaps in the not too distant future:  What happens when a court overturns an order and the President refuses to comply?

This is more than a merely hypothetical question.  President Biden issued an order last week pausing deportations for 100 days.  This Tuesday, a federal judge, Drew Tipton, issued a temporary restraining order barring the pause from going into effect until the case is fully adjudicated.  What if Biden were to go ahead and stop the deportations anyway?

Before we get to that, a few things to note:

First, this is a hypothetical.  I’m not saying Biden would actually do this; he’s supposed to be an institutionalist and defying a court would be a radical step.  I could have easily picked an order of Trump’s or Obama’s and made the same case.  I’m picking the order because it’s in the news for one thing, but also because the Democrats control the House and Senate as well, and are inclined to support the order itself, more on that in a moment.

Second, that shouldn’t imply I picked this order out of thin air.  Remember, Obama himself said that it’s “just not the case” that a President can suspend deportations via an executive order.  It’s highly likely this order is unlawful and, further, that Joe Biden knows it.  Meaning, he issued the order knowing it would be struck down at some point.

Lastly, a President violating a court order is also more than a hypothetical.  Andrew Jackson is claimed to have said of Supreme Court Justice John Marshall, “John Marshall has made his decision; now let him enforce it.”  Whether he actually said it is debatable, but he did proceed to defy the court.  Lincoln also defied the courts when he suspended Habeas Corpus.  It doesn’t happen frequently, but it has happened and at some point will likely happen again, hence the crisis.

Back to what would happen if Biden defied the courts over deportations.  As both Jackson and Lincoln counted on, the courts have no means to enforce their rulings.  They issue pieces of paper and rely on the executive branch.  The executive branch controls the day-to-day operation of the government, not to mention the military, the FBI, and the CIA.

Therefore, the courts are essentially powerless to enforce an order if the President were to defy it.  This leaves two options, the Congress and the Court of Public Opinion.

First, Congress can override the order by passing veto proof legislation or they can impeach.  Congress, however, is controlled by Democrats who likely support the order themselves.  Are AOC and Ilhan Omar really going to take a President of their own party to task for violating the courts on an issue they agree with?

I could be wrong, but it seems inconceivable to me that there would be a super majority to override or impeach on this issue.  In my opinion, they would likely let it stand, meaning they would support a President defying a court order.  That’s an actual Constitutional Crisis if ever there was one.

Second, the mainstream media likely supports the policy as well and they are also likely to know that the Democrats won’t fight Biden on the issue.  Do you really believe increasingly woke editorial boards are going to take to their computers in outrage over reinstating deportations whatever the court may have said?

Again, I could well be wrong, but I find it hard to believe we’d see CNN or The New York Times actively accusing Biden of subverting the Constitutional order, causing a crisis, and recommending his immediate impeachment.  Do you think they will accept the votes of Amy Coney Barret and Brett Kavanaugh on this issue? Meaning, there would be no pressure on Democrats in Congress or from the public itself to overrule or impeach.  The court would be defied and no one in a position of power and influence would do anything about it.

The result is the same Constitutional Crisis.

Perhaps even worse, in the ever-escalating tit-for-tat of partisan politics, the first defiance of a court order would almost certainly not be the last.  A future Republican President would be almost guaranteed to do the same, and the end result would be a completely emasculated court.  The constitutional order established since John Marshall was Chief Justice in the early days of the Republic completely upended.

As mentioned earlier, this scenario is hypothetical for now, but how far from reality remains an open question.  The executive and legislative branch deference to the courts is a democratic norm, not a constitutional guarantee.  The combination of increasingly expansive executive actions, a reliance on the courts to police these actions instead of ensuring the actions are legal in the first place, and one party control largely supported by the mainstream media is a constitutional crisis waiting to happen.

A real one, not what normally passes for one in the mainstream media. Unfortunately, there’s not much we the people can really do about it except demand better from our leaders and our media, but I’m not sure anyone is willing to bet on that.

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