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Memories of the 28th Century

Edicts versus Laws

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Edicts versus Laws

Article II of the U.S. Constitution specifies that the president “faithfully carry out the acts of Congress", and it also mentions that the president carries out foreign policy and is commander in chief of the military, but the constitution does not give the president the power to make law on his own. Regardless of what powers the president has, as of Feb. 2021, there have been 14,014 executive orders made, according to the Federal Register.

I have known for a few decades that the U.S. Government had expanded to the degree that it has stolen power from the states. A few days ago I started looking at executive orders, and since then it has become apparent to me that the biggest problem with the federal government is what it has taken from the states but the degree to which the executive branch has usurped power from the Congress. In addition to orders, there have been proclamations, memoranda, and other presidential decrees. The Federal Register lists more than 14,000 orders.

With more than 14000 orders, there is a large variety among them, and many are simple procedural orders, while many are expansive far beyond the power of the president. And some appear excessive, until one looks at the detail. For example, when Trump raised tariffs by order it looked excessive, but it turns out that one of the tariff laws of the the 1920’s gave the president that power. Whether the president should have that power is another question.

For one example, EO 12,333 has been the “law” under which NSA has operated for a few decades. That's one of the more extreme examples, but it forced Snowden into exile in Russia, even though there are major questions as to whether he broke any laws.

Here are two lists of Biden's Orders so far, and just from the titles, it is clear that some of them should be laws; they should have had to go through the legislative process.

If executive orders are so necessary, then it might be a good idea to enshrine them in the Constitution with an amendment describing how they should be done and what areas are suitable for them. In the absence of that, I am rather uncomfortable with them. I just realized that the establishment of the illegal prison at Guantanamo Bay would have been by an executive order, so it has no legal standing, at all. The people who are being held there in violation to U.E. And international law should be released immediately. I wonder how many others are being held as a result of an executive order.

Guantanamo is only one of the serious crimes that was done with a signature on an executive order. The internment of the Japanese during WW II was another, and the suspension of habeas corpus in the North during the Civil War was another. I shouldn't look to hard, because I will find more. Then there have been the wars against so many countries with a declaration from Congress.

The question isn't whether some of the executive orders have unconstitutional effects; the question is what to do about it. Making it even more difficult is the fact that what some would regard as unconstitutional others would consider to be just fine. After looking through the lists of orders for a few years, I am more certain that Many orders should have been done through Congress, so they are invalid, while others appear to be perfectly valid procedural matters, establishment of studies, etc. It would take a long time to just read all of the orders and even longer to make a determination of their validity, and people have already determined that they were valid orders. And that probably is true in many cases. Fortunately, others have seen the problem and had the time and expertise to look into it. . This is an excellent article that people may want to read completely. One excellent point is that there have been two opposing opinions of presidential power: Some opine that presidential power is only restricted by specific laws and constitutional provisions, while other believe that presidential is restricted to only those matters cited in the Constitution. A simple reading of the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” makes it perfectly clear that the powers of the federal government including all branches is limited to the powers granted in the Constitution, and the bulk of other powers reside with the states.

I think that we can tell where a given president comes down on the question of presidential power by looking at that president's use of executive orders and other unlegislated exercises of power (starting wars, and so on).

Correcting the problem will be difficult, because expansive federal power is built into the political landscape. People don't go into politics to exercise the tiny bits of power that the Constitution grants of the president and to congress; they want to be kings. It wasn't that long ago, when people went into government service, because they wanted to provide their friends, neighbors, and fellow citizens with the highest quality that was possible, and it would be good, if people were inculcated with that concept from an early age. If we continue to have people who think that president is the same as king, then we would be better off repealing the constitution and making me Emperor.

Updated 02-23-2021 at 11:38 PM by PeterL



  1. PeterL's Avatar
    The link to the Archives is dubious. I just tried this one, and it worked.