When he was first elected, President Barack Obama proclaimed to the nation that he would not just wait for Congress to act. “I’ve got a pen,” the president said.
It’s likely that those who agreed with President Obama’s politics applauded the statement. And maybe you’re one of the millions of Americans who want presidents, governors, and bureaucrats to act – even if the legislative branch of our government (i.e., the people) never gave them the authority to do so.
If this describes you, it’s time to rethink your position and commitment to our Constitution.
Civics 101 teaches us that the legislative branch makes the laws, the executive branch enforces the laws, and the judicial branch interprets the laws. Of the three branches, the legislative is perhaps the most important as it is the only part of the government that can make new laws or change existing laws – or at least that’s the way it was supposed to be.
In reality, all three branches are now trying to make laws – an effort that is dramatically changing the size, scope, and confidence in government. This is true at the federal level and in many states as well.
Consider the president’s most recent action forgiving student loans. Congress never passed such a law. Instead, the Biden administration is using different interpretations of an early 2000’s piece of legislation to “forgive” the debt (i.e., have taxpayers cover), despite court rulings that have called it unconstitutional.
In the tug of war over separation of powers, executives (whether they be presidents or governors) have always tried to push the limits of their power. The founders knew this would be the case, which is why they tried to instill so many checks and balances, as well as place the legislative branch first in the Constitution.
But more recent executive actions have so blurred the lines that it is difficult to see how a restoration of our founding principles would be accomplished.
President Biden has issued 138 executive orders. Former President Trump issued 220 in his four years in office. Both issued various orders that dabbled into policymaking.
Many courts have done the same. The U.S. Supreme Court re-wrote portions of the Affordable Care Act in 2012 to uphold the law by a vote of 5-4. The Nevada Supreme Court once overturned a voter-approved constitutional amendment for a two-thirds vote on taxes, so that education spending could increase.
Interpreting law? No. Policymaking? Yes.
On the state side, Washington Gov. Jay Inslee has frequently used executive orders to adopt policy that he couldn’t get the Washington state Legislature to pass, even at one point making it illegal to go fishing during the pandemic – again, something the Washington legislature never passed.
Montana Gov. Greg Gianforte and Idaho Gov. Brad Little have been more cautious about stepping on the toes of the legislative branch. Still, bureaucrats have a history of finding a way.
One needn’t look further than the proposed $685 million purchase by the University of Idaho of the University of Phoenix. The Idaho state Board of Education unanimously approved the deal, which caught many legislators and the public off guard. In fact, it was made public only 24 hours before the vote, even though it’s the Legislature that appropriates money to the university.
As former Supreme Court Justice Antonin Scalia would frequently say, if you want a law, “convince enough of your fellow citizens” to pass it. And if you want a role in policymaking or appropriating, join the legislative branch.
If the Congress or the Legislature won’t act, elect a new Congress or Legislature.
