Presidents Gone Wild — with Executive Orders

By Michael Tanner

Wednesday, October 23, 2019

Barrels of ink and countless hours of news time have been devoted to President Trump’s casual embrace of unilateralism and authoritarianism — with good cause. This is, after all, someone who says, “Presidents can do whatever they want.” As president, he has now issued more executive orders than Barack Obama, of the infamous “phone and a pen,” did over the same period. He has asserted the power to redirect congressionally appropriated funds, wage war, and ignore subpoenas.

Rhetorically, Democrats have loudly criticized this latest iteration of the imperial presidency. Yet, out on the campaign trail, the Democratic presidential aspirants have been quick to embrace a view of almost unlimited presidential power.

We now shrug off the grandiose promises of candidates to remake the economy, establish universal health care, and so on, as if Congress had no say in the matter. But when the need to build a legislative consensus does come up, the candidates simply promise to do it themselves.

Former vice president Joe Biden has criticized the use of executive orders. However, his website clearly states, “On day one, Biden will sign a series of new executive orders with unprecedented reach that go well beyond the Obama-Biden Administration platform and put us on the right track.”

Elizabeth Warren has already promised more than a dozen specific executive orders on issues ranging from immigration to worker non-compete clauses, from banning fracking to “requir[ing] every federal agency to incorporate diversity as part of their core strategic plan and create support networks through a government-wide mentorship program that centers Black and Brown employees.” And that doesn’t count all the executive orders she plans to undo Trump’s executive orders, which were designed to undo Obama’s executive orders, which were . . . you get the idea.

The other candidates are equally enamored of going it alone. Bernie Sanders would ban cuts to pension benefits through executive order, and Kamala Harris would impose a variety of gun-control measures. Julian Castro would unilaterally impose a carbon tax. And on and on.

Some of these ideas might be good ones and could form the basis for important legislative debates. But the American system of government rejects the idea that the president is some sort of elected king. As James Madison warned in Federalist No. 48, “An elective despotism was not the government we fought for; but one in which the powers of government should be so divided and balanced among the several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by others.”

Article I of the Constitution says, “All legislative powers herein granted shall be vested in a Congress of the United States.” If Congress has repeatedly abdicated that authority, it doesn’t change the fact that, as Chief Justice Jackson wrote in the 1952 case of Youngstown Sheet & Tube Company v. Sawyer, “In the framework of our Constitution, the President’s power to see the laws are faithfully executed refutes the idea that he is to be a lawmaker. . . . The Constitution is neither silent nor equivocal about who shall make laws which the President is to execute.”

Even when candidates turn to Congress, their authoritarian tendencies show through. Warren wants to eliminate the Senate filibuster and, along with Harris and Buttigieg, is considering packing the Supreme Court.

Nor do the candidate’s authoritarian impulses stop with usurping the powers of Congress. They apparently also want to be the courts as well.  President Trump was rightly criticized for leading chants of “Lock her [or him] up” about his political rivals. But Democrats seem to have no end of people they want to lock up: President Trump and members of his cabinet, of course, but also pharmaceutical executives, insurance-company heads, gun manufacturers, and others that Democrats disapprove of. Obviously, if crimes have been committed, the perpetrators should be vigorously prosecuted. But there is something deeply unsettling about presidential candidates opining on guilt or innocence.

Nothing seems too small a matter for presidential oversight. Kamala Harris wants to censor Trump’s Twitter feed.

Presidential power has been increasing for decades. We’ve reached the point where presidents can go to war, appropriate funds, impose revenue measures, and far more, all without congressional approval. President Trump is pushing the boundaries of presidential authority even further. Sadly, though, Democratic complaints seem to boil down to Trump using that power for policies that the Democrats disagree with. They are all too happy to grab that power for their own purposes.

Unfortunately, this “might makes right” approach to governing is unlikely to end well.