President Joe Biden rode into the White House on Wednesday with his executive order pen revved up and a host of presidential edicts prepped on parchment, ready for his signature. Incoming presidents, especially of late, have used executive orders as a way to act swiftly on their agenda or to reverse the policies of the previous administration. What is wrought by executive order is usually erased by the same.
Presidents can issue such orders, but just because you can do something doesn’t always mean you should.
Ron Klain, the newly minted chief of staff for President Biden, issued a memo to senior administration officials five days before the president took office. The memo included rescinding the travel ban on several majority-Muslim countries, rejoining the Paris climate accords, extending limits on student loan payments and evictions instituted during the pandemic, and issuing a mask mandate on federal properties and for interstate travel.
Presidents of both political parties have increasingly governed by enacting major initiatives and priorities through executive orders. This is not what governing is supposed to look like in America.
The separate and distinct powers provided to each of the three branches of government detailed in the Constitution have been twisted and torqued, abdicated and amassed, undermined and absconded by overreach over the past several decades.
When issuing executive orders, presidents have nearly committed to memory something that sounds like, “Congress has once again failed to do its job, so I am signing an emergency executive order to deal with the (fill in the blank) crisis.” It is often followed by the admission that they expect opponents to file a lawsuit that would ultimately end up in the United States Supreme Court.
The pattern described isn’t unique to presidents of one political party or the other when in power. It is simply what has become sadly acceptable in Washington.
I have been critical of Congress which has, for decades now, been abdicating its proper authority to the executive branch. Many question why senators and representatives from across the political spectrum would give away the power and leadership authority bequeathed to them in the Constitution. The answer is simple — reelection.
This is how it happens: Congress passes a beautifully named bill filled with sweeping generalizations that bestow on executive branch agencies the power to write law, establish penalties and play judge, jury and executioner when violations occur. Such a scenario enables members of congress to point fingers and place blame on the executive branch and agencies when their constituents are unhappy with burdensome rules and oppressive, overreaching regulations. Representatives can’t be held accountable at the ballot box for the actions of the executive branch.
The executive branch is all too happy to take whatever power Congress is willing to provide. Presidents of both political parties have pushed the envelope in expanding executive power. Whether it is in the agencies within the executive branch that have become estates unto themselves or presidents themselves governing by executive order, the problem is the same. The natural byproduct of an executive order is for lawsuits to be filed and for the issue to begin to wend its way through the courts.
Presidents and those they lead in the executive branch often issue edicts, orders and regulations knowing it could take years for the problem to move through the courts.
During the Obama administration, the United States Supreme Court regularly served as a check against the executive branch. Twenty times, the Supreme Court voted unanimously to strike down President Obama’s overreach on a wide range of issues within his executive orders. The courts also served the Trump administration and its executive branch a record number of stiff and stinging rebukes and the worst win-rate by a president at the Supreme Court in history.
Executive orders also create uncertainty for the very people they are supposed to help. President Obama created hope for young people trapped in a broken immigration system. That hope turned to uncertainty as President Trump reversed course by his own executive order. Now President Biden will begin with a new executive order.
We have also seen uncertainty swinging on that same pendulum as it affects jobs, public lands, health care, energy, international trade and more. Uncertainty is not good for people, organizations, markets or economies.
President Biden is off to a swift start with executive orders. As a long-time senator, hopefully, he will resist the temptation to rule by executive order and instead lead through influencing the legislative process. At minimum he should remember as he begins to build his presidential record and future legacy that what is wrought by executive order is usually erased by the same.
The path to certainty and confidence is found in following the proper process. It takes two or, in America’s case, three (House, Senate and president) to do the legislative leadership tango. Both chambers of Congress must step up to their duty and do their job while the president needs to engage, lead and resist unilateral action. It is a difficult dance, but it’s worthy of the best effort of every elected official.
Good governance is a great goal for a new Congress and a new president.