There are essentially just two branches that comprise the Federal Government now: The Executive and Judicial Branches. Congress has become a bunch of feckless bureaucrats that try to take the powers and authorities of the other two branches whenever it suits them. In the process, they have defanged themselves by ceding power to the Executive Branch.
That has become apparent with the use of executive orders by every president in the modern era. Executive orders shouldn’t be a substitute for a law passed by both Houses of Congress and then signed by the president.
Executive orders should strictly be used as a means to direct an agency or department on how they should implement a law already passed through Congress.
President Obama famously said that he had a “pen and a phone” in reference to how he would use executive orders to advance his policy agenda if Congress failed to do. The most notorious and unconstitutional of his orders was DACA, which effectively gave citizenship to hundreds of thousands of illegal aliens. Whether one agrees with this policy or not is a separate issue. The main problem was that the president has no authority to take such a drastic action under the Constitution.
However, the Supreme Court upheld Obama’s unconstitutional order after Trump tried to end the program and sent it to Congress to debate over whether they wanted to enshrine DACA into law. Of course, Congress punted and left it up to the courts. Trump was abiding by the Constitution when he ended the program and left the survival of the program up to Congress.
I am not a fan of executive orders that essentially become de-facto laws no matter who the president is. President Trump issued four executive orders over the weekend to help provide payments and financial relief to millions of Americans who have lost their jobs due to the pandemic.
Once again, it might very well have been a good policy, but the president is performing the function of Congress by doing so. However, because Congress has kicked its constitutional powers over to the Executive Branch for so long, Trump acted legally by doing so. That doesn’t make it right, but it was legal.
Daniel Hemel is a law professor at the University of Chicago. He wrote the following in the pages of the Washington Post explaining the legality of two of Trump’s orders:
“Start with the most significant action: a memorandum ordering the Federal Emergency Management Agency to approve payments to out-of-work Americans. The statute that authorizes this move, the Disaster Mitigation Act of 2000, allows the president, in consultation with the governor of each state, to provide financial assistance for ‘necessary expenses or serious needs resulting from [a] major disaster.’
He ordered Treasury Secretary Steven Mnuchin to allow employers of workers earning less than around $100,000 annually to put off paying the employee payroll taxes they owe until January 2021. Mnuchin has the authority to do this under the Taxpayer Relief Act of 1997, which — as amended — allows the treasury secretary to delay tax deadlines by up to 12 months in a presidentially declared disaster.”
Nancy Pelosi and Chuck Schumer are screaming bloody murder about Trump’s use of EO’s. Where were they when Barack Obama used his “phone and pen” tactics during his eight years as president? Magically, now that Trump is president, they are all for defending the Constitution from presidential overreach…at least when it suits them.
If Democrats don’t like Trump’s executive orders, they should put a lot of that blame on Barack Obama. He set the precedent for a bloated Executive Branch and widespread presidential overreach. However, even almost four years after leaving office, Obama is still the Left’s anointed one and they dare not speak ill of him.
Predictably, the Left will continue to cry “Orange Man Bad!” without turning any of that criticism on themselves…and in the meantime, American citizens will continue to be that much worse off because of it.