If the flurry of executive orders issuing from the Oval Office have shown anything, it is that the Biden Administration takes an expansive view of Executive Power. On his first day in office, the President signed 17 executive orders—a record. In his first ten days, he’s signed forty—another record. With the stroke of a pen, Biden re-joined the Paris Accord, required masks on federal property, nixed the Keystone Pipeline project, and revoked the Mexico City Policy. As Axios described the week, “Never before has a president done more by executive fiat in such a short period of time than Biden.”
Although presidents since George Washington have used executive orders to set priorities and declare administration policy, the Constitution makes no mention of such a tool, and the Supreme Court has never directly upheld their use or defined their limits. The Constitution clearly vests the legislative power—that is, the power to make law—with Congress. By constitutional design, the executive generally is limited to enforcing the law made by Congress.
The Constitution’s separation of powers suggests that substantive executive orders—which modify the rights of individuals by presidential fiat—are on thin ice. When the president unilaterally shuts down a major economic driver in poorer states or requires schools to allow transgender athletes to compete in women’s sports, he is flipping the constitutional design on its head.
Biden is not the first Democratic President to govern by executive fiat. Before being elected, President Obama expressed deep misgivings about executive orders. Four years in office, however, modified his views, and in his January 2014 State of the Union Address, he promised to “wherever and whenever” possible “take steps without legislation.” President Obama made good on these promises. Even the New York Times described his presidency as one of “bureaucratic bulldozing, rather than legislative transparency” and prophetically warned that “[h]is pursuit of “executive power without apology will shape the presidency for decades to come.”
Those birds have come home to roost. The government shape emerging from the Biden Administration focuses on executive and administrative power and leaves precious little room for legislating vis-a-vis the people’s representatives. While a record number of executive orders have been issued from the Oval Office, the White House has not much engaged with the legislative process, seeking input from Senators who represent varying interests.
Perhaps not surprisingly, then, the executive orders issuing from the Oval Office have taken a hard-left turn. (After all, why seek common ground when ruling by fiat?) It was not so long ago that Vice-President Biden argued against including a contraceptive mandate in the Affordable Care Act; to do so would be a slap in the face to Catholic Americans, he protested. Yet this past week, he revoked the Mexico City Policy, allowing U.S. tax dollars to fund foreign abortions.
Americans can and do reasonably disagree over energy policy, minimum wage laws, and immigration criteria. That is why it is important for all of the people’s representatives—not just the man in the White House—to play a role in forging policy.