“The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse.” —James Madison
“Where law ends, tyranny begins.” —Lord Chatham
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Is the Executive Order Constitutional?
Executive orders are not mentioned in the Constitution. Their use is merely a practical exercise, based on the president’s authority to “take care that the laws be faithfully executed” in Article II, Section 3, Clause 5.
The executive order had always been used to execute the laws already put in place by Congress. But, in 1952, the Supreme Court had to make a ruling on the issuing of an executive order issued by President Harry S. Truman, who used an executive order to overstep his Constitutional authority.
In Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952), the Court ruled that Executive Order 10340, placing all steel mills in the United States under federal control, was an illegal order, since it attempted to make new law, rather than to clarify or further a law already put forth by the Congress or the Constitution.
Since 1952, presidents have generally been careful to cite specifically which laws they are acting under, whenever issuing or reissuing executive orders. But President Barack Obama has issued some controversial executive orders during his tenure as President of the United States that need to be reconsidered from a constitutional perspective. It is true that he bases his orders on existing statutes and previous executive orders, but he extends presidential power under these laws in ways that are not clearly mapped out in the legislation—and for good reason, since doing so would have crossed a constitutional line, in most instances, rendering the laws or executive orders, as written, unconstitutional.
Sowing the Seeds of Dictatorship
The more controversial of President Obama’s executive orders intend to consolidate dictatorial power in the executive branch of government, not respecting the fact that the legislative and judiciary branches are co-equal partners. As examples, here are some controversial executive orders issued by President Obama:
Executive Order 13524 (which amends Executive Order 12425) gives INTERPOL full authority to conduct law-enforcement activities in the US with immunity from US law and independence from American oversight. Thus, INTERPOL can enforce international law on US soil without any checks or balances by US authorities who have taken an oath to uphold the Constitution (issued as an amendment to a previous Executive Order, by Barack Obama on 12/16/2009; see http://www.whitehouse.gov/the-press-office/executive-order-amending-executive-order-12425).
Executive Order 13603 allows the president to regulate all forms of energy; all forms of transportation; all usable water from every source; all products capable of being eaten by animals or people; health resources such as medical devices, drugs, supplies, and facilities; and drafting of citizens into the military (signed by Barack Obama on 03/16/2012; see http://www.whitehouse.gov/the-press-office/2012/03/16/executive-order-national-defense-resources-preparedness).
Executive Order 13618 allows the president to take over all means of communication, including radio, television, and internet, in an emergency situation, such as a war or a threat of war. This would mean that only the president would have free speech or free press (issued by Barack Obama, to revoke Executive Order 12472 and to amend Executive Order 12382, on 07/06/2012; see http://www.whitehouse.gov/the-press-office/2012/07/06/executive-order-assignment-national-security-and-emergency-preparedness-).
Does the Constitution really endorse all of these executive orders? The last executive order listed allows the executive to implement it, with no oversight by the elected representatives of the American people, for six months. And can the president then reissue the order, after it expires, and remain dictator for an additional six months? Can this go on forever, then? How can any of these executive orders be constitutional?
The Difference between Lincoln & Obama: the Case for the Emancipation Proclamation
As Nancy Pelosi has pointed out, as justification for Obama’s issuance of yet another unconstitutional executive order—this time with regard to altering US immigration law—the Emancipation Proclamation was an executive order. But the difference between Lincoln and Obama is that Lincoln did not make new law with the Emancipation Proclamation, but only put into place a legitimate war policy under his power as Commander-in-Chief.
Here is how the Emancipation Proclamation worked: It authorized military commanders to free the slaves in the ten states still in rebellion at the time the order was issued. The proclamation also said that suitable persons among those freed could be admitted into the US armed forces.
This executive order did not outlaw slavery in the Union or in any areas under Union control. The Emancipation Proclamation was a carefully crafted policy that stayed within the guidelines set by the Constitution, since it did not apply to the four slave states not in rebellion (Kentucky, Maryland, Delaware, and Missouri); nor did it apply to Tennessee, since that state had been occupied by the Union since 1862. Lower Louisiana was excluded, as were the counties of Virginia that were later to become West Virginia. (Read the Emancipation Proclamation here: http://www.archives.gov/exhibits/featured_documents/emancipation_proclamation/transcript.html.) It would take the ratification of the Thirteenth Amendment, in December 1865, to accomplish universal emancipation.
Obama’s Executive Order on Immigration
President Obama’s executive order to change immigration law could extend to five million illegal aliens, helping them to stay and obtain work permits, according to the Migration Policy Institute. (For a graphic display, see http://www.nytimes.com/interactive/2014/11/15/us/politics/obama-immigration-plan-could-affect-millions.html.) The American people, knowing of his plan to do this, spoke loudly on November 4, 2014, to express their dissatisfaction with Obama on this issue, as well as many others. Rather than change the direction of his administration, President Obama seems to have doubled down on doing what he desires, rather than acting with the consent of the governed, in line with their understanding of the US Constitution.
A Constitutional Crisis
These are questions that must be answered, if America’s democratic republic is to endure, faced with Obama’s flouting of over two centuries of constitutional governance: How is civil society preserved, if the government begins to force its wishes on the people without their consent? How does a nation based on the rule of law—and not the rule of men—continue as a free people, once this principle begins to be repeatedly violated? How does the Congress remain relevant, if all legislative power is snatched away by the executive? And how can the people avoid governmental tyranny, if all past sets of agreements, duly passed and signed into law, can be thwarted by a sitting president?
They say there is an ancient Chinese curse: “May you live in interesting times.” As we begin to answer the above questions, the times may begin to get more interesting still. May God bless America. We the People are going to need it.
The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by EagleRising.com