A couple of years ago, after President Trump backed out of the Paris Climate Treaty and the Iran Nuclear Deal, I wrote a column for “Historically Speaking,” justifying his actions because those deals had been made by executive orders so could legally be overturned by executive order. At the same time, I argued that modern executive orders such as these went beyond the authority of the president and should be handled by Congress. If you want more proof of the folly of executive orders, on the first day of President Biden’s term, he signed into effect 15 new executive orders, one of which was to reenter the Paris Climate Deal. As with my first article, I am not arguing that we should or should not join with the climate agreement. My argument is about the process. The very fact that Obama can join it, Trump pull us out, then Biden rejoin – all done by one man and the stroke of his pen – goes beyond the scope of power the founders envisioned.
Last time, I cited the Constitution as an example to show how only Congress is authorized to make laws and approve of all treaties. The Paris Accords and the Iran deal are both treaties with foreign nations and hence should fall under the powers of Congress, yet they were not. There is nowhere in the Constitution that explicitly gives presidents power of executive orders; instead, the power is implied from Article II.
Not all executive orders are the same; some are perfectly legitimate. The Supreme Court has said a president can use the power if given authority by a clause in the Constitution or if Congress delegates it. All presidents have issued orders, starting with George Washington. Washington’s first order was that all department heads report to him what was happening in their departments. As head of the Executive Branch as prescribed by the Constitution, Washington had the right to request reports from his departments.
As Commander and Chief, presidents can make decisions about the military. Lincoln’s Emancipation Proclamation was an executive order. It was done as a military order to hurt the South by taking away their work force. Agree with the idea or not, Biden’s use of an executive order to allow transgenders into the military is legitimate. It falls under his military authority.
Another legitimate use of executive orders is in the enforcement of laws, another duty prescribed ...
