Executive Orders, Subject to the People
by JBS President Emeritus John F. McManus
In a nation where people enjoy freedom, laws are made by a parliament, a congress, or some similar assemblage of elected officials. These lawmakers owe their posts to voters and are, in the main, subject to the people. But, as history has repeatedly shown, the laws in many nations are made by the decrees of a king or dictator who relies on virtually almighty power to rule.America’s Founders knew well the excesses of that kind of power. So they declared themselves independent, fought a war to get out from under a king’s dictates, and won the struggle to be free. The very first clause in the 1787 Constitution they created left all law-making power in the hands of Congress. Under the rules established by the U.S. Constitution, the president is charged with the responsibility, not to make law, but to see that all laws properly enacted would be faithfully executed.
In the performance of his duties, a president can issue executive orders that have the force of law – but only among those who serve under him. A presidential executive order is proper when directed at government employees. While he serves, a president is much like the CEO of a company who certainly has a right to issue orders binding his employees.
In 1793, during his first term in office, George Washington issued an executive order declaring America’s neutrality in the war between France and England. Our first president soon realized that the protests of Madison and Jefferson against his executive mandate were correct. He then asked Congress to issue a law declaring the sought-after neutrality and Congress complied. There were no more presidential misuses of the executive order power for approximately 70 years.
In 1863, President Abraham Lincoln overstepped his authority and issued executive orders that suspended habeas corpus, blockaded southern ports, and emancipated southern slaves. He cited his role as “commander in chief” of the military to do so. Later, following the pattern set by Washington, he asked Congress to amend the Constitution to prohibit all slavery. Which was done. A measure of respect for the limitations on presidential power still existed during that period of history. Then in 1866, the Supreme Court in Ex Parte Milligan explained those limitations as follows:
The power to make necessary laws is in Congress; the power to execute in the President…. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President.
Fast forward to today. In its first seven years, the Obama administration issued 560 major regulations via executive orders. Each had significant economic or social consequences for the entire nation. His wrongful reliance on the power to issue improper executive orders followed President George W. Bush’s issuance of half the number created by President Obama. As reported by Binyamin Applebaum and Michael D. Shear in the August 28, 2016 issue of the New York Times, the Obama orders aimed, among other targets, to “restructure the nation’s health care and financial industries, limit pollution, bolster workplace protections, and extend equal rights to minorities.” The Times reporters added that Obama’s reliance on executive orders “has imposed billions of dollars in new costs on businesses and consumers.”
Barack Obama has even stated his intention to use “my pen” if Congress doesn’t enact laws he wants. Too often, Congress has caved in and tolerated such completely illicit contempt for the Constitution. This docility of the legislative branch has to stop. No king or all-powerful ruler should be making laws for our nation.
Congress should declare any executive order aimed at the entire population completely null. All presidents should follow the lesson George Washington learned while he served as President. All Americans should become familiar with Article I, Section 1, Clause 1 of the U.S. Constitution where Congress is named as the sole possessor of “All legislative powers.”
Mr. McManus served in the U.S. Marine Corps in the late 1950s and joined the staff of The John Birch Society in August 1966. He has served various roles for the organization including Field Coordinator, Director of Public Affairs, and President. Mr. McManus has appeared on hundreds of radio and television programs and is also author of a number of educational DVDs and books. Now President Emeritus, he continues his involvement with the Society through public speaking and writing for this blog, the JBS Bulletin, and The New American.
The Inconsequential G-7 Snub of Russia: Some History of the Ukrainians
by JBS President John F. McManus
Over many centuries, the country now known as Ukraine has for a time been considered part of Lithuania, Poland, Russia, or even Austria. Modern Ukraine became independent during a war that lasted from 1917 to 1921. No sooner had independence been won than communist Russia took control and Ukraine became the first of the many totally dominated nations in the Union of Soviet Socialist Republics (USSR). The Soviet-induced famine of 1932-33 then killed somewhere between six and eight million persons and certainly resulted in hatred of Russian dominance among many.During World War II, Nazi forces were greeted as liberators by Ukranians, especially in the country’s west. But there was always a desire on the part of many to reject both German and Russian dominance. Nevertheless, by the end of WWII, the Soviet Union acquired total dominance and Ukraine, along with nearby Belarus, was awarded a seat in the United Nations where both unfailingly followed USSR dictates.
When the USSR dissolved in 1991, Ukraine once again began to function as an independent nation. More than 90 percent of the people voted for complete autonomy in a 1991 referendum, but, in Crimea, the desire to separate from Russia won support from only 56 percent. That number in Crimea has eroded because a large proportion of those living in the peninsula are ethnically Russia and speak the Russian language. From then until now, Ukranians have been split over whether to look westward toward the European Union, or look to the east to Russia for their commerce and friendship. Only recently, as is well-known, Vladimir Putin’s Russia decided to retake the Crimean peninsula and Russian military forces backed up the move with a show of force. Many Crimeans seem happy about the development while those in other parts of Ukraine are not. A recent plebiscite in Crimea resulted in the residents choosing to be part of Russia, but the plebiscite’s result has been deemed rigged and a violation of the nation’s constitution.
To register their disapproval of Russia’s move into Ukraine, leaders of the economically powerful G-7 nations (Britain, France, Germany, Italy, Japan, Canada and the United States) disinvited Russia to their latest gathering, which, in reality, had become the G-8 group that has more recently included Russia. Meeting in The Hague on March 24th, the G-7 leaders canceled their scheduled plan to meet with Russia for a June G-8 session in Sochi, Russia. This step, along with sanctions imposed by several nations to protest Russia’s Crimean takeover, was supposed to influence Putin. But expecting Russia to withdraw from Crimea seems improbable even though UN Secretary General Ban ki-Moon condemned Russia’s action.
Now, the G-20 group consisting of the G-8 plus a dozen more emerging economic powers has entered the fray. Representatives of these 20 nations are scheduled to meet in Australia next November. When the possibility of excluding Russia from the G-20 summit was announced by an Australian official, G-20 members Brazil, China, India and South Africa immediately denounced the idea. They claimed that “hostile language, sanctions, and counter-sanctions” won’t lead to a peaceful resolution to the incident. Peace, it seems, will exist if the Putin takeover isn’t reversed. That is unlikely.
Incidents like what has occurred in Ukraine have the potential for starting world conflagrations. But chances that this will be an outcome are remote. Other nations might not like Putin’s retaking of Crimea, but it’s possible that the people who live there like what he has just done. If so, the rest of the world, especially the already overstretched United States, should mind its own business. We should hearken to the wise words of President George Washington given during his farewell address in 1796:
The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible …. It is our true policy to steer clear of permanent alliances with any portion of the foreign world.
Ukraine-related articles at The New American:
Making Law Through Executive Orders Is Unconstitutional
by JBS President John F. McManus
In his 2014 State of the Union Speech, President Barack Obama asserted that he would “take steps without legislation” to accomplish his goals. He had earlier mentioned using his “pen” to force his will on the American people. He referred, of course, to the practice of making law by decree in the form of presidential executive orders.
Obama would hardly be the first to force his will on our nation. George Washington thought he could do so when, in 1793, he proclaimed neutrality in the war between France and England. In doing so, he usurped authority belonging to Congress. Madison and Jefferson vehemently protested because the president’s order bound every American, not just government workers. They knew that it would be proper for a president, acting much the same as a corporation leader would act, to issue an order binding workers under his command. But he could not legally bind the hands of all Americans with an executive order.
When a citizen violated Washington’s neutrality executive order, he was arrested and tried for his action. But a federal court acquitted him on the grounds that a presidential decree aimed at all Americans was an invalid exercise of authority. (Would that we had federal justices who would similarly view presidential wrong-doing!) A chastened Washington then asked Congress to replace his order with its own legislation accomplishing the goal in a constitutional manner, and Congress did as requested. Washington issued no further executive orders aimed at the people.
But many future presidents have employed executive orders – all with no constitutional authority. Franklin Delano Roosevelt issued more than a thousand. Yet, Article I, Section 1, Sentence 1 of the Constitution states that “All legislative power” resides in Congress. Law-making by the Executive Branch violates that very clear mandate.
During the Clinton presidency, aide Paul Begala praised his boss’s reliance on the practice. He actually stated, “Stroke of the pen; law of the land, kinda cool.” But Democrats are not alone in employing this violation of the Constitution. In 1970, President Nixon used his pen to issue an executive order creating the Environmental Protection Agency. Every president during the 20th century engaged in the practice.
It can’t be stated too often that law-making is the sole prerogative of the Legislative Branch. But when that branch allows the executive-order practice to continue, it even escalates. As long as congressional failure to assert its sole authorized power is allowed to continue, executive orders will continue to saddle the American people with rules and regulations that might never have arisen had the Constitution’s very first sentence (after the Preamble) been obeyed.
Next time you meet with your congressman or senator, ask why he or she allows this clear violation of the Constitution.