Executive Lawlessness

Let me be your ruler
You can call me Queen Bee
And baby I'll rule, I'll rule, I'll rule, I'll rule
Let me live that fantasy
--Lorde

In his State of the Union message last week, President Obama promised that "wherever and whenever [he] can take steps without legislation to expand opportunity for more American families, that's what [he's] going to do."

As an American citizen, Mr Obama can act in many ways to expand opportunity for others. For example, he could donate part of his salary to needy families. He needs no legislative backing to do so.

However, what the president is signaling here is intent to act by issuing executive orders. Although the Constitution makes no explicit provision for the issuance of executive orders, the chief executive of the executive branch of the federal government has traditionally thought to be within his pervue to issue orders that enable him to execute laws developed by Congress. For example, the president might order the establishment or continuance of committees that advise the executive branch on technical issues associated with implementing particular laws.

Presidents have acted accordingly. FDR holds the record, issuing more than 3,500 executive orders during his administration.

However, executive orders that establish new laws or defy extant laws are not constitutionally valid. The presidency is not a lawmaking position. The president has no constitutional power to act unilaterally.

Yet, when President Obama overtly states that he intends to "take steps without legislation," it is difficult not to construe that this is precisely what he intends to do.

In fact, President Obama has already done so. Judge Nap offers the example of executive orders issued by the president related to immigration prior to the 2012 election that had no basis in congressional law. The president has also materially changed the law thru orders related to killing purported enemies of the United States by drones, and to changing requirements specified by the Affordable Care Act statute. Thorough documentation of this administration's attempts at expand executive power is being developed by a Congressional committee headed by Senator Ted Cruz (TX).

When presidents act without Congressional approval, they are practicing rule by fiat. Discretionary rule was clearly a situation that our American ancestors feared and endeavored to avoid.