Executive orders by the president can’t simply be substituted for legislation from Congress, because of the Constitution and the fact that the United States is a “nation of laws.”
That’s according to President Obama, who has been quoted several times in recent weeks saying that if he doesn’t get what he wants from Congress, he’ll do it himself through executive orders.
“We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen, and I’ve got a phone,” Obama said Jan. 14.
“And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward in helping to make sure our kids are getting the best education possible, making sure that our businesses are getting the kind of support and help they need to grow and advance, to make sure that people are getting the skills that they need to get those jobs that our businesses are creating.”
He continued: “One of the things that I’m going to be talking to my Cabinet about is how do we use all the tools available to us, not just legislation, or order to advance a mission that I think unifies all Americans.”
His aggressive use of executive orders dates back to his first inauguration, when he ordered presidential records sealed in a move that has remained largely unexplained.
But according to a lengthy report from David Remnick about Obama that was published by the New Yorker, Obama himself has pointed out the shortcomings of an executive order strategy.
“If, in fact, I could solve all these problems without passing laws in Congress, then I would do so, but we’re also a nation of laws,” Obama said at the West Coast’s Ong Center during a fundraising trip Remnick recounted.
“Then it happened again: another heckler broke into Obama’s speech,” Remnick wrote. “A man in the balcony repeatedly shouted out, ‘Executive order!,’ demanding that the president bypass Congress with more unilateral [immigration] actions. Obama listened with odd indulgence. Finally, he said, ‘I’m going to actually pause on this issue, because a lot of people have been saying this lately on every problem, which is just, ‘Sign an executive order and we can pretty much do anything and basically nullify Congress.’
See the definitive explanation of the Constitution and what is going on in America now, in “A Nation of Sheep,” “Constitutional Chaos,” “It is Dangerous To Be Right When the Government is Wrong,” “Lies the Government Told You,” “The Constitution in Exile,” “The Freedom Answer Book” and “Theodore and Woodrow,” by Judge Napolitano.
“Many in the crowd applauded their approval. Yes! Nullify it! Although Obama has infuriated the right with relatively modest executive orders on gun control and some stronger ones on climate change, he has issued the fewest of any modern president, except George H.W. Bush,” wrote Remnick.
“‘Wait, wait, wait,’ Obama said. ‘Before everybody starts clapping, that’s not how it works. We’ve got this Constitution, we’ve got this whole thing about separation of powers. So there is no shortcut to politics, and there’s no shortcut to democracy.”
Despite his statements about the Constitution and the law, he’s used executive orders for pay changes, setting up a variety of councils, creating immunity for Bosnia, ensuring abortions through Obamacare, promoting “diversity” and dozens of other things.
A top legal expert, Judge Andrew Napolitano, told WND there are few limits on what Obama could include in his orders, and fighting back is a long and hard course.
“There really is no line,” the judge told WND in an interview Wednesday. “We have the welfare state, the warfare state, we also have the administrative state.”
That, he said, allows a president through his appointees to issues rules and regulations, impose requirements and change America.
Only when a federal agency “abuses its discretion,” as determined by the courts, are the reins drawn, Napolitano explained.
In his second term, Obama has used such orders to prepare the United States for the “impacts” of one of his favorite causes, “climate change.”
He also used the power of his pen in his first term to change national practice – some say he changed the law – regarding illegal aliens. One of the biggest points his critics make is that he has arbitrarily, without action from Congress, repeatedly changed the federal Obamacare law to make provisions for certain groups of constituents.
Even the the far left-leaning FactCheck wrote: “It’s true that President Obama is increasingly using his executive powers in the face of staunch Republican opposition in Congress. He’s changed federal policies on immigration and welfare and appointed officials without congressional approval.”
‘Stroke of the pen’
It was a presidential aide to Bill Clinton, Paul Begala, who put the controversy into perspective back in July 1998.
“Stroke of the pen. Law of the land. Kinda cool,” he said, delighting in how the Clinton machine was able to simply dictate what it wanted to have happen.
Napolitano, the senior judicial analyst for Fox News, is the youngest life-tenured Superior Court judge in the history of the state of New Jersey. He told WND under the “administrative state,” the Administrative Procedures Act allows presidents to make appoints to agencies, who then make determinations about what happens in America, what is allowed, what is not, what is required, or not.
This “body of permanent bureaucrats unanswerable to the public” also generally survives from administration to administration, he said.
Two recent battles have developed over executive power.
One is over so-called “net neutrality” rules adopted by the Federal Communications Commission to require providers to give consumers equal access to lawful content without restrictions or tiered charges. An appeals court struck down the rules last week.
Obama also is fighting for his “recess appointments” to the National Labor Relations Board, even though the Senate was in session at the time.
Napolitano told WND the bar set for the invalidation of executive orders – essentially that the decision abuses an agency’s discretion – is very high.
Preparing to bypass Congress
But if Obama’s goal is more executive actions, he’s been preparing for it. He recently appointed John Podesta, founder of the Center for American Progress, as his counselor.
Podesta specializes in the use of executive authority to bypass Congress, particularly to enact “progressive” change.
It was reported Podesta will help the White House on “matters related to the health care law, administration organization and executive actions,” with particular focus on so-called climate-change issues, according to a person familiar with the plans.
In November 2010, he co-authored a 48-page Center for American Progress paper titled “The Power of the President: Recommendations to Advance Progressive Change.”
“The U.S. Constitution and the laws of our nation grant the president significant authority to make and implement policy,” wrote Podesta in the paper’s introduction.
“These authorities can be used to ensure positive progress on many of the key issues facing the country through executive orders, rulemaking, agency management, convening and creating public-private partnerships, commanding the armed forces … diplomacy.”
How it’s supposed to work
“In Article I Section I of the Constitution we learn that all legislative powers reside in Congress. The executive branch has the responsibility to execute the laws passed by Congress. An executive order is not legislation. It is an order issued by the president to enforce laws passed by Congress. This is backed by the declaration that the president ‘take care that the laws be faithfully executed’ made in Article II, Section 3, Clause 5. Thus, executive orders can only be used to carry out the will of Congress (which is only supposed to be passing laws in line with the Constitution), and not to issue new policy.”
Thompson said that’s not the way reality has been playing out lately.
He said some of Obama’s orders appear to be flagrantly unconstitutional, but because it’s a presidential order, it is followed unless some individual or group challenges it and wins.
“We’ve looked at the issue. Depending on the particular order, there may be material that is unconstitutional,” he said. “But the issue is what are you going to do about it?”
He said the first line of defense against an unconstitutional president should be Congress. They should say, he said, ‘The president is enacting legislation without other branches of government.”
He said, however, if Congress fails to act, then it is up to an individual who is willing to make a fight of it.