Pardons, Executive Orders and Extra-Legislative Mechanisms
Good or bad, we are stuck with them in their current form until Congress acts.
I have received several communications asking what my thoughts on Trump’s wave of Executive Orders are. I knew, as most of us did (because Trump said it aloud) that this was coming, so we’ve had a bit of time to think about them – what we didn’t have was the fullness of the Biden pardons as a baseline.
I have read a lot from the mainstream Democrat media (who had the hoax and outrage machines warmed up and ready to go, starting with Trump not putting his hand on a bible at while taking the oath of office), listened to the insane screeching of the Democrats, and heard the kvetching of the weed infused libertarians over at Reason magazine, so my sample size is robust.
So, let’s get into it.
Let me say I have for decades I have been against administrative law in all its forms. I also think the presidency is too big, and by extension, the other branches are too big as well – but the presidency is occupied by a single person and therefore is the closest to a kingship America has ever had. The closer the presidency gets to a kingship, the more dangerous it becomes.
The first thing to remember is the power of pardon is plenary, meaning that it is a constitutional power that it a complete and absolute power to act on a particular issue, with no limitations. The only way to change that is through a constitutional amendment which aside from the bitching and moaning after every party change in the White House, no president or party will do because they like that power.
Executive orders are different. They are signed, written, and published directives from the President of the United States that manages operations of the federal government.
Executive orders are not legislation and while they do have force of law, they require no approval from Congress, and Congress cannot simply overturn them. Congress may pass legislation intended to make it difficult, or even impossible, to carry out the order, defunding the activity created by the EO. That is one way of functionally and practically stopping it without overturning it. Only a sitting U.S. President may overturn an existing executive order by issuing another executive order to that effect.
Traditionally EO’s were used to memorialize a day or a month for some cause or name a federal building - innocuous stuff – but they are also used to make policy that has the force of law – at least until Congress or the Supreme Court gets involved. EO’s are subject to judicial review - in 1952’s SCOTUS case, Youngstown Sheet & Tube Co. v. Sawyer, SCOTUS struck down Truman’s Executive Order 10340 which ordered the Secretary of Commerce to seize most American steel mills.
In my opinion, the problems began when presidents figured out that EOs, presidential memorandums, or “guidance” letters issued by cabinet agencies were extra-legislative ways to immediately get their way.
Even though those issuing these “directives” know they will be overturned when challenged, that takes time, and that time is used to implement the actions or policies long enough to functionally sustain the change when the mechanism is eventually overturned. Obama’s agenda was based on this “Stop me if you can” philosophy, as was Biden’s. Trump’s actions were largely, not all, directed at reversing the policies of Obama and Biden he saw as roadblocks to his populist agenda.
I guess the question we must ask is this: is it better to fight fire with fire or to lose ground through the right process?
While I don’t like governance by executive fiat, it is a fact that executive fiat cannot be countered fast enough by congressional or judicial action to stop any damage that is being done. An example would be Biden using the power of OSHA rulemaking to mandate the Covid vaccine for every company with a federal contract and over one hundred employees. It was unconstitutional before the ink dried on the paper, but it took a significant amount of time to overturn and in the meantime, Biden and the Covidiots got what they wanted.
I don’t think the Trump team believes every EO, memorandum, or guidance will stand. What he is doing is responding in kind to what Obama and Biden did – because it works. He’s getting sued from left and right – but the administration knows, like Obama and Biden knew, that by the time the challenges wind their way through the courts, either legislation will be in place or whatever they wanted to do will have already become operationally imbedded.
In my mind, executive orders are the only way to fight executive orders. While it expands presidential power and creates and executive that is, as Woodie Wilson said, “as big as the man,” the action/reaction cycle is with us until it isn’t.
If we want to change this, Congress will need to get off its ass and legislate, enshrining the spirit of executive action into law.
And until then, the only way to fight fire is with fire.
I agree that it this time in our history, fire v. fire is the way to maintain some kind of balance. Additionally, we need to adopt an Eye for an Eye approach too. We know, because we have seen it too many times, that the Dems will not stop, that there is no bipartisanship in their vocabulary. Therefore, we need to even the playing field on the part of the right.
Let me put it in Barry's terms - we will show up to their knife fight with a gun. That is how 'they' play the game and how we need to play it too. Just for all of the leftist idiots who are monitoring these bits and bytes, I'm not advocating violence, I am using a metaphor that your man B.O. used.
We need to be more prepared now than ever before as you stated Michael, the Dems/Media are already cranked up and it will get worse before long.
Besides EOs, the unelected bureaucracy has to be relegated to advisory status. Their rules should not have the status of law. They have grievously hurt Americans. We know this acutely in the West.