The Pen-Mad President
It isn't just Biden. Presidents all do it and have done it: sign Executive Orders as if they were named king instead of elected President.
The New York Times Editorial Board writes:
A week into his presidency, Mr. Biden has issued a raft of executive orders and other actions. Already, he has committed to rejoining the Paris climate change agreement, ended the Muslim travel ban, canceled the permit for the Keystone XL pipeline, rescinded funding for and halted construction on the wall at the southern border, reaffirmed the Deferred Action for Childhood Arrivals program, mandated mask-wearing on federal grounds, moved to end the federal government's reliance on private prisons, reversed the ban on transgender military service and called for agency assessments aimed at advancing racial equity -- just to name a few. The coming days will bring more such action.These moves are being met with cheers by Democrats and others eager to see the legacy of Donald Trump's presidency dismantled posthaste. Republicans, meanwhile, are grumbling about presidential overreach and accusing Mr. Biden of betraying his pledge to seek unity.
In other words, things are going the same way they often do in Washington. "There's a sort of tribalism when it comes to the use of executive orders," observes John Hudak, a senior fellow in governance studies at the Brookings Institution. "When your party's in the White House, it's the greatest thing on earth. When your party's out, it's undemocratic. It's basically Satan's pen."
But legal limitations are not the only -- or even perhaps the biggest -- point of concern. Executive actions are far more ephemeral and easily discarded than legislation, which can set up a whipsaw effect, as each president scrambles to undo the work of his predecessor. Just as Mr. Trump set about reversing as many of President Barack Obama's directives as possible, Mr. Biden is now working to reverse many of Mr. Trump's reversals. With executive orders, there is always another presidential election just a few years off, threatening to upend everything.
This creates instability and uncertainty that can carry significant economic as well as human costs.
It's also just not in the spirit of a democracy. As they say in the subtitle of the piece: "Legislating through Congress is a better path."
It's a more lasting path and it's the democratically righteous path.
In case you're wondering, and I was:
Presidential executive orders, once issued, remain in force until they are canceled, revoked, adjudicated unlawful, or expire on their terms. At any time, the president may revoke, modify, or make exceptions from any executive order, whether the order was made by the current president or a predecessor....The United States Constitution does not have a provision that explicitly permits the use of executive orders. Article II, Section 1, Clause 1 of the Constitution simply states: "The executive Power shall be vested in a President of the United States of America." Sections 2 and 3 describe the various powers and duties of the president, including "he shall take Care that the Laws be faithfully executed."
The U.S. Supreme Court has held that all executive orders from the president of the United States must be supported by the Constitution, whether from a clause granting specific power, or by Congress delegating such to the executive branch. Specifically, such orders must be rooted in Article II of the US Constitution or enacted by the Congress in statutes. Attempts to block such orders have been successful at times, when such orders either exceeded the authority of the President or could be better handled through legislation.
And from Lawshelf on whether these things can be terminated and how:
An executive order or memorandum can be terminated in several ways. The sitting President can rescind an order issued by himself or a previous President or can override the old order by issuing a new order contradicting it. This frequently occurs when a new president takes office and wants to establish new policy goals.For example, when President Obama took office, he issued an executive order that counteracted an executive order signed by President George W. Bush which limited funding for stem cell research. Similarly, when President Trump took office he issued an executive memorandum contradicting President Obama's previous memorandum concerning the Deferred Action for Childhood Arrivals (or "DACA") initiative.
Congress can override an executive order or memorandum expressly or by eliminating the funding necessary to carry it out. Recall that while an executive order has the force of federal law, it is subordinate to federal law that contradicts it. Overriding an executive action is rare, however, because legislation to overrule an executive action by a sitting president will almost certainly be vetoed by that president, and, in today's hyper-partisan environment, gathering a two-thirds majority necessary to override a presidential veto is difficult.
Finally, a court can overturn an executive order if the President acted outside of his authority when he issued it. This can be a difficult determination because, when the President issues an order, he usually gives multiple sources for his authority, such as the Constitution, his power as Commander-in-Chief, and a specific statute, to which courts tend to defer. When courts do overturn executive action, it's usually on the basis that the order violates the civil rights of individuals or groups.
The most famous example of a court overturning an executive action was in in 1952, in Youngstown Sheet & Tube Co. v. Sawyer. There, during the Korean War, President Truman ordered steel mills seized to break up a strike of steel mill workers. The Court held that Truman did not have the authority to issue an executive order seizing steel mills because no specific statute authorized him to do so. His power as Commander-in-Chief did not authorize him to unilaterally take private property. Moreover, Congress had specifically rejected the idea of granting the President the power to seize factories for military production.
In recent years, Congress's gridlock and increased polarization have pushed presidents to turn to executive actions more and more as substitutes for legislation.[16] This trend will likely continue as our nation's Commander-in-Chief looks for alternative paths to set and enforce policy.








Bipartisan legislation is best, even if it means you don't get everything you want. It tends to last longest.
For example, when Dwight Eisenhower became president, he wanted to eliminate Social Security. However, he was informed that because many Republicans had voted in favor of it, he'd have to cross a large chunk of his own party to get it eliminated. He declined to fight his own party and Social Security survived.
The 1964 Civil Rights Bill survived an attempt to bury it in a Senate committee when a bipartisan group of Senators conspired to bring a modified version of the bill to the Senate floor, bypassing the committee. The bill was passed with broad bipartisan support and stands as hallmark legislation today.
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Which brings to mind another drawback of executive orders - ambiguity. Executive orders are often vague and undisciplined pieces of lawmaking, more political theater than anything else.
For example, Biden's EO concerning transgendered athletes is a vague piece of lawmaking subject to whatever interpretation executive branch regulatory agencies choose to impose upon it.
The EO says, "All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation." Yet, nowhere does it define either of those terms. Nor are they defined elsewhere in the body of US law. Title VII refers to sex, not gender. This EO would replace Title VII's clearly defined category with two vague ones.
Properly written laws and legal documents define the terms at issue to avoid any misunderstanding or ambiguity that can be exploited. This EO does not. Massachusetts law clarifies its own definition of sexual orientation with "which shall not include persons whose sexual orientation involves minor children as the sex object."
Conan the Grammarian at January 28, 2021 5:17 AM
Prescience:
"Kamala Harris. Has she ever done anything right?" - Gog_Magog_Carpet_Reclaimers at December 23, 2013 5:05 PM
Radwaste at January 28, 2021 6:37 AM
I really don't like this back and forth where we have a new dictator every four years. Congress needs to get its shit together.
NicoleK at January 28, 2021 7:30 AM
What makes you think this isn't part of Congress' plan?
This way, representatives and senators get to avoid being criticized for compromising with the other party and to avoid taking a firm position on controversial issues, all while still getting paid as if they were making laws. They can pontificate on issues without being blamed for any unintended consequences or blowback.
Conan the Grammarian at January 28, 2021 8:32 AM
We've had the CapitalStag Fire, and soon the diverse version of The Enabling Act.
"The Law to Remedy the Distress of the People and the Reich is also known as the Enabling Act. Passed on March 23, 1933, and proclaimed the next day, it became the cornerstone of Adolf Hitler's dictatorship. The act allowed him to enact laws, including ones that violated the Weimar Constitution, without approval of either parliament or Reich President von Hindenburg."
The Rise and Fall of the BidenReich.
Heil Biden.
Jay J. Hector at January 28, 2021 11:19 PM
Conan, what a depressing thought!
But then what's the point of being in Congress if you have no actual power?
NicoleK at January 29, 2021 4:35 AM
What makes you think they have no power, NicoleK? They just want to get rid of the part with responsibility.
It fits in with the other classic gag. Post three different laws on the same topic. Have 1/3 of your party vote yes on one law and no on the other two. Then go to your voters and say you tried but you just didn't have the votes.
Ben at January 29, 2021 5:54 AM
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