Dakota Beacon

Kings rule by decree. Presidents do not. Or, at least, they are not supposed to. But this is a new age and all bets are off. By all appearances, America’s government is in transition from a republic to an imperial presidency.

A subtle assault on the separation of powers intensified under President Obama. Intensity is measured not by the quantity of executive actions but by their purview.

An Executive Order (EO) is a rule or regulation issued by the President that has the effect of law. No specific provision of the U.S. Constitution or federal statutes allow for Presidential EOs. Custom, precedent and very broad constitutional interpretation establish the basis for Presidential EOs.

The intent of EOs is to implement provisions of the Constitution along with existing treaties and statutes. EOs typically apply to departments, agencies and personnel of the executive branch.

No President has the power or authority to legislate. The separation of powers into the legislative, executive and judicial branches intentionally fragments government power. Distributing law making, law enforcement and law interpretation serves to prevent tyranny. Checks and balances allow each branch of government to prevent encroachment by or accumulation of power within one branch.

Times of crisis or national emergency present special situations. At exceptional times it is appropriate that the federal government speak with one voice. That voice is the President’s.

A declaration of war by Congress is an example. When congress declares war, it cedes vast power and authority to the President. Upon a declaration of war, the President rules America in a total sense through the use of EOs. For this reason, Congress does not rush to declare war.

Over time, use of EOs has increased. Congress deliberately allowed the executive branch to fill in details to laws passed thereby fleshing out what should have been accomplished by Congress.

To date, President Obama has issued 195 EOs. But, Obama has resorted to issuing another form of executive action – presidential memoranda. Like EOs, they don’t require action by congress; they have the force of law and have consequences just as far reaching. He has used memoranda to make policy on gun control and immigration. He has issued 198 memoranda, more than any other president. Combined with his EOs, Obama has taken more executive actions than any president since Harry Truman.

Abuse of EOs and memoranda occur when the President uses them indiscriminately for his own personal, political or ideological ends. This could be for “legacy building” or to repay political debts or to advance an ideological cause. Abuse occurs when the intended effect of an EO or memorandum extends far beyond the bounds of the executive branch, for example, when they are employed to control or orchestrate means to political ends. Abuse occurs when the president uses executive actions to obligate public funds without congressional authorization. Abuse occurs when executive actions are used to declare a national emergency or crisis merely as a pretext to issuing another action to further his ideological goals.

EO 12919 entitled “National Defense Industrial Resources Preparedness” is the authority the President invokes following a congressional declaration of war. Through liberal interpretation of this EO the President can declare a national emergency without congressional consultation. Using the National Security Council and the Federal Emergency Management Agency, the President can assert dictatorial authority over citizens, food, transportation, energy, health, contracts, materials, and other resources.

Americans are little aware that they have lived under a perpetual state of emergency for many years. An emergency declared by President Carter during the Iranian hostage crisis in 1979 is still in effect 35 years later. A national emergency declared by President Bush following the 9/11 attack remains in effect, has been renewed six times by President Obama and forms the legal basis for the war on terror. President Obama recently extended another Bush emergency declaring widespread violence and atrocities in the Democratic Republic of Congo a threat to the foreign policy of the Untied States.

The good news is that power still resides with the people -- if they will use it. First, Congress must restore its legislative authority. Second, Congress must stop deferring to the President to fill in the details of laws it passes. Finally, there is always hope that a wisely vetted president with integrity will rescind damaging EOs implemented by other presidents.

If congressmen and senators regardless of party do not comport themselves as capable legislators they should be given their walking papers.

Dennis M. Patrick can be contacted at P. O. Box 337, Stanley, ND 58784 or (JavaScript must be enabled to view this email address).