Thursday, December 29, 2022

States Discuss Constitutionality of Executive Orders

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

Executive Orders were given their name during the early twentieth century, during the Progressive Era.  Originally, they were called "Presidential Proclamations".  The word "order" being a part of its name is deceptive, and the Founding Fathers would have never approved of that word being a part of what the President of the United States does.  After all, the President is not a king, a ruler, or even the "highest office of the land" as we have been convinced.  As with all other offices in American Government, there is no action by the President that can be accomplished (from an original intent standpoint) without direct or indirect oversight by another part of government (in the case of presidential actions most often the oversight is provided by a part of government serving as a direct or indirect voice of the state legislatures).  The President has no authority to "order" anything.  He can make suggestions, he can request that the legislature consider making legislation regarding something he wishes to accomplish, but in the end the primary job of the President of the United States is to serve as Commander in Chief, to execute the laws of the United States, and to act as the figurehead of the country when it comes to foreign relations, and other related external duties.

Executive Orders also hold no power of law.  Article I, Section 1 of the United States Constitution clearly vests all legislative powers (the power to create law, modify law, and repeal law) in the legislative body, the United States Congress.  In short, executive orders are not legally binding, but they may be used as a tool to carry out existing legislation that is legally binding, or they may be used for a "proclamation", which is not legally binding.

According to the article Rep. Brian Seitz (R-Branson) of Missouri, a member of Missouri's State Assembly, is sponsoring a bill that would require state lawmakers to scrutinize and, potentially disregard, some presidential executive orders.  The bill would call for the state legislature to "review all presidential executive orders not affirmed by a Congressional vote to determine if 'they are, in fact, Constitutional.'”

“I’m a firm believer in states’ rights, and am very concerned about losing our authority [as a legislature] to federal overreach,” Seitz said.

“There are three branches of the government—not one,” Seitz said, stressing if adopted, the measure “would cover executive orders from presidents of either party.”

According to The Epoch Times, "Since Democrat Joe Biden was sworn in as president in January 2021, similar bills have been introduced in at least nine other Republican-controlled state legislatures: Alabama, Utah, Nebraska, South Dakota, North Dakota, Oklahoma, Tennessee, Iowa, and South Carolina.  The Oklahoma and Tennessee bills advanced through committees to chamber votes in 2021 but ultimately were not adopted."

[The] American Legislative Exchange Council (ALEC) senior director for Homeland Security, International Relations, and Federalism Karla Jones said the bills are in response to “federal overreach that infringes on state sovereignty.”

“We just saw [the bills] proliferating because executive orders were becoming such a problem,” Jones told The Epoch Times. “There was a lot of alarm among state lawmakers who care about federalism and worry about federal overreach.”

During his first six months in office, “Biden was on track to issue more executive orders than FDR [Franklin Delano Roosevelt],” she said. “He has since leveled off.”

I am guessing Biden really hasn't backed off, but simply began to do what Barack Obama did, issue Executive Memos and Executive Letters, instead, which are not numbered.

Those who support the use of executive orders claim the President issues them because “Congress doesn’t have the political will to do the hard work.”

In other words, if what the President wants to do does not materialize legally, he must be willing to put into action his will unconstitutionally through executive orders.

Executive Orders are not a mechanism that exists to be put into action if Congress is not willing to do what the President wants, or to fine tune legislation to better fit the President's desires.  Executive Orders are in place to enable the President to put into action what Congress wants, as the law was written.  If he has a problem with any piece of legislation, he may veto it when it crosses his desk, or send a memo or letter to Congress requesting a modification or repeal of the law in question.

The Epoch Times states in its article that there is substantial case law regarding presidential executive orders limits and constitutionality...most notably 1952’s U.S. Supreme Court ruling in Youngstown Sheet & Tube Co v. Sawyer, which established the framework for analyzing whether a specific executive order is “a valid presidential action.”

Case Law does not apply.  What does the Constitution say, or not say, regarding the matter?  As previously stated, Article I, Section 1 is sufficient enough to show that no executive order may be legally binding (treated as law), making any "order" to the country a proclamation (suggestion, or edict).

Executive authority through executive orders rose to become a more prominent issue during the COVID pandemic.  Executive Orders not only became a concern when issued by the President, but also those issued by State Governors.  As with the federal government, at the State level all legislative powers also are only vested in the legislative body (all State Constitutions confirm that no legislative authority is vested in the gubernatorial part of government).

The argument proclaiming that executive powers became legally binding during the scamdemic uses the claim that we were in a “state of emergency,” giving the President and governors "emergency powers" to issue emergency orders; thus, redefining executive orders and actions.

The problem with that argument is that there is no constitutionally supporting language to be found in the U.S. Constitution...anywhere.

In short, if it is not law that was enacted through the legislative process the executive branch of a State, or the Federal Government, cannot enforce it.  Period.  And that includes any mask mandates, or demands that you get jabbed in the arm with a needle.  And if there is any legislation ever passed regarding those things, they would still be unconstitutional.  The Fifth Amendment (federal) and the Fourteenth Amendment (State) provide that a person can not be deprived of their life, liberty, or property without due process.  Remember, liberty is your freedom to say "no."

-- Political Pistachio Conservative News and Commentary

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