In 1789, James Madison and the framers of the U.S. Constitution, having declared independence and fought a war against the tyranny of the British monarchy, were now challenged by a weak, ineffectual national government that threatened the viability of a nascent nation. In response, they architected a new Constitution that established a tripartite government comprised of the executive (the President), legislative (Congress), and judiciary branches — each with separate, yet countervailing powers.
This separation of powers with its checks and balances is the foundational cornerstone of our constitutional system of government. It is, as explained by Madison, “essential to the preservation of liberty” by guarding against the “concentration of…powers” in one branch of government; and necessary to protect the people from the “abuses of government” and the “oppression of [their] rulers.”
Fast forward to today, Madison would be stunned by modern presidents’ arrogating power, including legislative power, far beyond the dictates of the Constitution through the prolific use of executive orders and the self-diminishment of Congress. To him, it would seem the Constitution failed the people.
Since President Washington issued the first executive order directing the heads of executive departments to submit reports about their operations, virtually every President has issued executive orders. The sheer number and wide-ranging scope of executive orders, however, has grown immensely under recent presidents and continues to expand with President Biden. They represent the “usurpations” of power that Madison feared.
Madison issued only a single executive order in eight years as president while modern presidents each have issued hundreds. Indeed, reflecting this presidential arrogance, then President Obama boldly declared, “We can’t wait for an increasingly dysfunctional Congress to do its job. Where they won’t act, I will.”
Executive orders are directives issued by the President with the force and effect of law. There is, however, no mention of executive orders in the Constitution. Rather, this presidential authority is implied from the Constitution, which vests executive power in the President, or as expressly or impliedly granted by Congress through statutes.
The President’s executive power is limited. According to the Constitution, the President has no power to make laws. Article I of the Constitution vests this power exclusively in the legislative branch: “All legislative Powers herein granted shall be vested in a Congress of the United States.” Note the unambiguous terms “[a]ll” and “shall.”
In contrast, the President, per Article II, may only “recommend” — i.e., suggest — measures to Congress and is otherwise required to “take Care that the Laws be faithfully executed.” That is Congress makes the law, and the President is required to “execute” those laws. The President’s only power in the legislative process beyond recommending laws to Congress is the power to veto legislation, which Congress can override.
Critical to limiting the power of the President, Article I commits the “power of the purse” to Congress, not the President. Article I specifies that there can be no expenditure of public money except through Congressional “Appropriations made by Law.” This “Appropriations Clause” functions as a constitutional check on executive power.
Flouting the Constitution, Biden to date has issued over 200 executive orders and other directives to impose through executive fiat the Democrats’ radical, divisive progressive agenda. These orders are sweeping in their transformational scope and threaten our national security, economy, religious liberty, and individual rights.
Examples of Biden’s more egregious orders, to name just a few, include:
- Halting the border wall construction, diverting the border wall funding, and opening the border to unprecedented illegal immigration, Mexican cartels, Chinese fentanyl, and human trafficking;
- Canceling the Keystone XL pipeline and ordering environmental and climate change programs, which severely compromise the energy security that is essential to our national security, and have resulted in an substantial increase in fuel prices for American families and businesses;
- Exporting abortion by ending the ban on the use of federal taxpayer funds for international abortion services;
- Directing a student loan relief plan that would be one of the largest expenditures in history (forgiving nearly a half trillion dollars of loans owed by 43 million borrowers), and that clearly violates the Constitution’s grant of exclusive spending power to Congress; and
- Ordering a radical racial equity program that requires all government agencies to implement, among other things, “Equity Action Plans,” and “equitable outcomes” based on racial identity, in violation of the Fourteenth Amendment’s mandate for the “equal protection of the laws,” and the Civil Rights Act’s prohibition on discrimination.
As evident from these examples, Democrats in Congress have relied on Biden’s extreme exercise of presidential power as an “easy button” to implement their radical progressive agenda. And they want more as the Congressional Progressive Caucus presses Biden to use executive orders to advance their wish list that would never be enacted by a bipartisan Congress.
Madison wrote in the Federalist papers that this concentration of legislative and executive powers “in the same hands” is “the very definition of tyranny” and “despotic government.” Protection against this tyranny is dependent on checks and balances with each branch of government “resist[ing] the encroachments of the others” in order to keep the branches of government “in their proper places.” “Ambition must be made to counteract ambition.”
Biden and the Congressional Democrats have subverted this vital principle as Biden wields seemingly unbridled executive power with not just the complicity, but the endorsement of Congressional Democrats. Madison would be completely bewildered by this willing concession of constitutional power — this betrayal of Congress as an institution — by Congressional Democrats.
Biden’s power grab endangers our Constitution, our nation, and our liberty. To curtail this surging abuse of executive power and the growing obsolescence of Congress, we the people must unite in 2024 to elect a Republican majority in the Senate and House. Then, this new Congress must aggressively revitalize its constitutionally prescribed legislative power and reset the proper balance of power between the branches of government.
Michael Clancy is a lawyer, political and legal commentator, and member of the Federalist Society. Follow him on Twitter @MikeClancyVA
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.