By Dr. Harold Pease
The Founding Fathers’ concept of separation of powers has been heavily altered the last fifty years. The Constitution allowed only the Legislative Branch to make law (Art. I, Sec. I, Clause I). A law’s review by 533 individuals (432 members of the House, 100 Senators and 1 President) served as a filter for bad law as only one bill in thirty survived the rigid scrutiny of both branches and the signature of the president.
Today the president makes half as many laws as does the Legislative Branch. Some few laws of Congress need a statement of implementation by the president. For example, President Washington was directed by Congress to create Thanksgiving Day as a national holiday. This he did by Executive Order, which was lawful. An executive order, if it simply implements a single, recently passed (within weeks), law of Congress is fine. But, when he instead takes multiple pieces of many laws passed by ancient congresses, he effectively creates new law without any review and unconstitutionally usurps the powers of Congress. This has happened through much of the 20th Century.
Even more blatantly unconstitutional is the practice of presidents, beginning with Nixon, of not even attempting to justify their Executive Orders with ancient pieces of authorization, instead, just decreeing something to be law. These are known as Presidential Decrees and differ little from Monarchical Decrees. More recent is the practice by presidents, most notably George W. Bush, of issuing a Signing Statement on a new law that they do not like, which basically says that he will enforce only some parts while ignoring others.
Except for the few Executive Orders, which require a statement of implementation by the president, all other types of Executive Orders are unconstitutional and must stop. If they do not, the inevitable will happen– Congress will nullify itself and monarchical decrees will be the standard.
Good Question. The Supreme Court only speaks when something is litigated.
Congress is the branch that should contest vehemently. The practice is
now nearly 100 years old. A challenge would have to be mounted on the
basis of original intent, unfortunately, all but Clarence Thomas favor
past practice which means if something isn’t challenged for a time it
becomes acceptable even if totally out of harmony with original intent.
What you have asked would take a very gutsy Congress devoid of party
worship to accomplish. Besides, when I worked on the Constitutional
Sub-Committee of the Judiciary Committee of the U. S. Senate I was never
convinced that the Constitution was actually ever read by any Senator let
alone read with the eyes of the Founders. I hope this helps.
My comment is more of a question, the question is why doesn’t congress, or the supreme court who are there to balance the power step in and say what the president is doing is wrong and not constitutional, especially when the President says, before he signs such Executive Orders, “by the power vested in me by the Constitution of the United States…”?