The Constitutional Problem with Governing Through Executive Orders

On March 2, 2021, the Wall Street Journal wrote the article, “Biden’s Hurdle: Courts Dubious of Rule by Regulation,” regarding President Biden’s swift executive orders and organizations like NCLA that are troubled by the modern trend of using executive orders in place of legislation.

NCLA’s Executive Director and General Counsel, Mark Chenoweth, joins OANN “Morning News” with Stephanie Myers to discuss the influx of executive orders seen in the Biden administration. President Joe Biden has signed more than 30 executive orders to date, nearly as many as the past four presidents combined at this point in their terms. NCLA is raising concerns.

Key takeaways:

Thus far, President Biden has signed 34 executive orders compared to 15 executive orders signed by Former President Trump in this timeline. NCLA views the Administrative State as an especially serious threat to constitutional freedoms.

• The electoral mandate belongs to Congress and the president. The Constitution instructs that if you want to pass laws you need to do that through both houses of Congress and then signed by the President.

• This more modern trend towards resorting to executive orders is troubling. Executive orders aren’t supposed to bind anyone outside of the executive branch and trying to use them as laws is an unconstitutional shortcut.

• On January 6th Republican AGs wrote a letter to Biden raising their concerns saying he’s following the unfortunate path of executive unilateralism.

• Conservatives are reviving the “nondelegation” doctrine -NCLA is supportive of reinvigorating the “nondelegation doctrine”. It’s the very first thing in the constitution and it says that all legislative power will be vested in a Congress of the United States., and that vesting clause gives all of the legislative power to Congress and none of it to the Executive Branch, none of it to the President.

• So when the President is trying to use an executive order in place of legislation he is really violating Article I, Section 1 of the United States Constitution. Read the WSJ article here.

March 9, 2021