By DOUG SHAVER
December 17, 2010
Progressives are getting upset over Joe Biden’s scruples about presidential authority. He seems to think the Constitution puts some limits on that authority and that he should respect those limits. Krystal Ball, a YouTube journalist, interprets that to mean, “He is not willing to do what he can with executive action.”
But as we are forcefully reminded from time to time, we have a government of laws, not of men, and the difference between them is the difference between “may” and “can.” A government of men can do whatever those men want to do without any regard to the rights of the people they govern. The power is theirs, to use as they wish. The only thing stopping them from making the people’s lives miserable is the notion that there are certain things they may not do, even though they can do them. We call that notion “inalienable rights” and we insist that the government’s primary reason for existence is the securing of those rights.
The problem arises because the new Congress, regardless of how the Georgia vote turns out, will almost certainly do almost nothing that progressives want it to do, and so they want Biden to do it by executive order. Ball admits, if I understand her correctly, that there might be some Constitutional questions about some of those executive orders. But that is not a problem, she says. Biden should issue them anyway and then wait for the courts to rule against them. If they do, well, at least we tried to do the right thing. Apparently, it’s better to try something easy but illegal than to follow the legal but difficult course.
But, “Let the courts decide” cedes ultimate authority to the judiciary, and there is a reason we have three branches of government. Our founders gave us a republic, not a monarchy or an oligarchy. The president was supposed to be the chief executive officer, not the king, and the Supreme Court was not supposed to be a ruling council.
None of the three branches is supposed to have any control over the others, with a few exceptions summarized in the phrase “checks and balances.” Only Congress may enact laws, and for that, the Constitution allows no exceptions. Insofar as Congress has, within the past century, delegated its authority to regulatory agencies within the executive branch, it has arguably violated the Constitution, and the courts, insofar as they have permitted this delegation of authority, have arguably shirked their own duty. So be it, but even when authority can be delegated, responsibility cannot. The executive agencies have only whatever power Congress says they have, and Congress may revoke that power at any time. The president would have nothing to say about it except by vetoing the revocation, and Congress can override his veto.
Executive orders are sometimes said to have the “force of law,” but they are not laws. They are instructions to people employed by one of the three branches of our government. All three branches are comprised of people. Those people are typically referred to as government employees, but they can’t receive orders from anything as abstract as “the government.” They have to get their orders from other people, other government employees who happen to be in supervisory roles. Just like in any other bureaucracy.
The separation of powers means every government employee works within and for only one of the three branches. If you work for an executive agency, then so does your boss, and so does his boss, and so on up the hierarchy until you get to the president. The president has supervisory authority over all federal employees within the executive branch—and nowhere else. His orders have the force of law insofar as there can be legal consequences for failure to comply with lawful orders from anybody in a position of governmental authority.
But the key term is “lawful orders.” There are certain orders the president cannot lawfully issue to anybody, and they include any order inconsistent with the president’s job description in the Constitution. That description is open to some interpretation, of course, and different presidents havDocumente interpreted it differently. More to the present point, our nation’s several political factions have demanded various interpretations according to what they wish the federal government would do to accomplish their political goals.
To get Congress to do anything, you need to persuade 51 senators and 218 representatives. That is 269 people, and each one of them has to keep 50 percent plus one of their constituents happy. It is certainly easier to make things happen if you can get just one person to agree with you that it should happen. But that would not be progress. Progress happened back during the Enlightenment when the English monarch’s power was transferred to Parliament. Any enhancement now of the president’s authority would be a reversal. Or rather, it would continue a gradual reversal that seems to have begun with Woodrow Wilson, as documented by George Will in The Conservative Sensibility.
Objections of this sort—Constitutional objections—to enhancing presidential power typically elicit accusations that conservatives are indifferent to the suffering of people lacking any power. But the proper first response to any proposal for alleviating human suffering is not “Let’s do it” but “Will it work?” and we are not obliged to take the word of the proposal’s advocates that it will. Of Documentcourse some conservatives are ethically challenged, but so are some progressives. No faction seeking to retain or augment its political power can be presumed morally infallible. Our nation’s founders understood this very well.
There can be no system of government that ends all suffering, not even all undeserved suffering. No matter what we do, some will suffer, and not all will deserve their suffering. We can do no more than try to minimize the latter. We have come a long way in that direction. We have a long way yet to go, but we will go no farther if we deny the impossibility of achieving perfection. Reasonable goals are achievable. The only result of trying to achieve unreasonable goals will be failure to achieve any goals, and an unachievable goal is not a reasonable goal.
A president with legislative authority is obviously an achievable goal, and just because some of us don’t want to go there doesn’t mean we should not go there. Maybe we should, but I have yet to hear any progressive offer a good reason to believe that the outcome would be a more perfect union ensuring more liberty and more justice for all.