Hitler got the Reichstag to effectively dissolve itself and turn its powers over to him when it passed the Enabling Act.
Nowadays in the US that’s not even necessary – just go around Congress through executive orders, and if no one can stop you, then you’ve got it made without any pesky legislative squabbling. After all, kingships are so much more efficient in their lawmaking.
This is how the practice has evolved:
It took Barack Obama seven years to go from “A president is not above the law” to “We’re not just going to be waiting for legislation … I’ve got a pen and I’ve got a phone.” Joe Biden did it in just three months. In October 2020, candidate Biden explained, “[Y]ou can’t [legislate] by executive order unless you’re a dictator.” Three months later, President Biden issued 29 executive actions within three days of taking office. Now, after 100 days, Biden has issued more than 100 executive orders, proclamations, memoranda, and other executive actions; a display of executive unilateralism that would make even President Obama blush.
Actually, it wouldn’t. Firstly, I believe Biden has Obama’s blessing on this and probably even Obama’s direction. Secondly, whatever restraint Obama initially exercised during his own presidency was the result of gauging the readiness of the American public. Obama slowly paved the way, keeping an eye on what people were ready for, and when the frog was good and boiled it was decided that the public was ready for the Biden administration’s extension of the tactic:
As of April 29, Biden had issued 41 executive orders, more than twice the number issued by either Obama (19) or Bush (11), and two-thirds more than Trump (25). Counting other unilateral executive actions, but excluding mostly symbolic actions like, say, declaring a National Agriculture Day, Biden issued 64 compared to 54, 41, and 20 for Trump, Obama, and Bush, respectively.
There are some nifty graphs and charts there which show how incredibly far ahead Biden is not only of Trump or Obama or Bush, but of most previous presidents except FDR.
Under Article II, the president’s authority to issue executive orders must come either from a power granted to him by the Constitution or by a law passed by Congress. The President can wield only the power he already has. He can’t give himself new powers, such as the legislative powers reserved to Congress in Article I of the Constitution. When the President exceeds his authority by legislating via executive action, he violates the fundamental system of checks and balances embedded in our constitutional form of government.
The temptation of unchecked executive power is strong. Even former constitutional law professors can eventually give in to the temptation of unchecked unilateral executive action, even though they know darned well they shouldn’t. Just ask President Obama, who was correct in 2010 when he said of immigration reform, “I am president, I am not king. I can’t do these things just by myself.” He was right again in March 2011 when he said, “With respect to the notion that I can just suspend deportations through executive order, that’s just not the case.” And again in May 2011, he could have been teaching a class on constitutional law when he explained “[I can’t] just bypass Congress and change the (immigration) law myself. … That’s not how a democracy works.” But the law professor lost out to the unitary executive and, in 2012, he went ahead and did it anyway. Whether or not you consider DACA to be good legislation is neither here nor there – it is legislation unlawfully handed down by the Executive Branch.
Not only is President Biden on track to seize and use more administrative power than any president since FDR, but he seems just as serious about ignoring and bypassing the legislature. A president’s first 100 days normally see him with a groundswell of support that he can use to push important legislation in Congress. But not Biden. Biden has signed only 11 bills into law during his first 100 days. By comparison, Donald Trump signed 28 by this point in his presidency.
We still have the power of the Supreme Court to act as a check on the executive branch, right? … Right?! You … might want to sit down. In addition to snubbing the Legislative Branch, President Biden fired a warning shot across the bow of the Judicial Branch with his order on April 9 establishing the Presidential Commission on the Supreme Court of the United States. The purpose of the commission is obvious to those with eyes to see: to provide political cover for plans to engage in FDR-style court-packing, or else to hold the threat of such a move over the head of the Court like an Administrative Sword of Damocles.
That’s a lucid summary of some trends we’ve noted on this blog for years. Anyone who is surprised by it hasn’t been paying attention. And anyone who is pleased by it is happy with partisan far-leftist tyranny.
I’ll also add that many of Biden’s orders are unsupported by the American people and that are in stark contrast to the way he and his PR people painted him during his campaign. He was the conciliator and the moderate – something that should never have fooled anyone, but which fooled a lot of people. Even now, although he’s been the opposite of moderate, that’s still the way many people write about him, and I would guess that a lot of low information voters continue to think it’s true.
Trump’s orders were a contrast in that they were exactly what one would expect, congruent with the way he campaigned. I can’t think of any topic on which Trump fooled the American people.
[NOTE: It should be understood that in this and in all other posts of mine, the term “Biden” may either be referring to Biden himself or whatever group of aides and advisors might actually be running the show.]