Executive Orders and Legal Laws

None can doubt the winds of change are blowing and our government is at work. Cabinet members for the new Trump administration have entered their positions through a contentious votes. Our new President is working hard in order to keep campaign promises. One of those promises was to install a Supreme Court justice who would uphold the Constitution. The masses hope the era of creating legal social (and moral) change through court system is over.

The United States Capitol

The cry has gone out for a justice who would honor the constitution. Our founding fathers wrote, “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” The courts are to judge cases from existing laws and  test the validity of new laws through the constitution and its amendments. The Courts are not to create new laws and because justice is blind they are not to become caught up in social issues.

In like manner the President is to “shall take care that the laws be faithfully executed” being careful to enforce existing laws. He shall “have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.” Neither the courts nor the President of the United States are to create laws. They are guided by existing laws made by congress.

Loading a canon in Yorktown, VA

But in recent years the Presidents have sought to create laws, just like kings. They issue “executive orders,” just like kings (such as King George III). A simple reading of the Declaration of Independence will lead to the discovery that our founding fathers would be horrified to discover our president is making laws (like King George III). There is no constitutional provision or statute that explicitly permits executive orders.

Executive Orders signed by the President are are growing phenomena. Franklin Roosevelt ordered over 3,000 executive orders. Theodore Roosevelt and Calvin Coolidge each ordered over 1,000. Ronald Reagan 381, George HW Bush 166, Bill Clinton 308, George W. Bush 291, and Barack Obama 276. Donald Trump is issuing orders almost every day.

At first executive orders were not laws at all, they clarified laws or helped people understand the purpose of existing laws. George Washington issued an executive order in 1789 recognizing Thanksgiving Day. Other orders asked citizens to recognize treaties with the Indians, pay taxes on liquor, and urged citizens not to interfere in foreign wars.

Independence Day Parade in Washington DC

Today the issuing of an executive order is different. The purpose is often to bypass congress, which is charged by the Constitution “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” Congress is called to establish a uniform rule of naturalization.” The Constitution also says (catch the spirit of the document here) “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.”

Presidents see the signing of an executive order as a way to push issues which would fail in congress (this is the problem so many have with the Supreme Court) such as executive order 11478 which was written to prohibit discrimination based on sexual orientation and gender identity (the bathroom law). Executive orders can also be used as a means to appear efficient and expedite campaign promises, such as the executive order imposing a 120-day suspension of the refugee program and a 90-day ban on travel to the U.S. from citizens of seven terror hot spots: Iraq, Iran, Syria, Libya, Yemen, Somalia and Sudan.

Militia Drummers in Williamsburg, VA

When Presidents bypass congress we lose a strength which comes from collective wisdom. Congress was created to include people with opposing views (such as northerners and southerners; republicans and democrats). They work through negotiation and compromise, examining every aspect of every bill so mistakes will not be made.  The process, though slow and at times messy creates stronger and more lasting laws. Executive Order 13770 brought cost and inconvenience to thousands of people with the stroke of a pen by causing the State Department to cancel 60,000 visas. It has also led to a fight between the President and the Courts which could have been avoided by following due process when laws are created.

The Constitution gives the following process for making laws, “Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States.” We need to return to the process which made America Great, even if it is slower and less convenient because the process outlined by our forefathers helps prevent mistakes and has the power to bring stability and unity.