Executive Orders or Edicts?
By Paul Engel
September 26, 2023
- We often hear about Executive Orders, but do you know what they really are?
- When did Executive Orders morph into the edicts of a sovereign?
- Where do EOs get their power, and what can We the People do to limit them?
President Obama famously said:
“We’re not just going to be waiting for legislation,… I’ve got a pen and I’ve got a phone…and I can use that pen to sign executive orders and take executive actions and administrative actions.”
This perfect example of executive overreach should go down in history as one of the greatest abuses of a President’s executive power to usurp the powers of other branches of government. But if Obama’s attempt to overthrow the legislative process was a perfect example, it was neither the first nor the last. To understand the horror freedom loving people should feel when exposed to such tyranny, we have to understand the role of Executive Orders and realize they are not the edicts so many Americans treat them as.
Executive Orders
To understand the tyranny of the abuse of Executive Orders, we first have to know what one is.
Directive action from a prime minister or president to its executive governmental agencies in an official document
Executive Order – The Law Dictionary
Executive Orders, or EOs for short, have been around as long as the republic, but what are they? They are formal instructions from the President to the executive agencies. They are how the President exercises his power to execute the laws of the United States. More on that later.
Before we started numbering and cataloging them, Presidents from George Washington on have issued orders to executive agencies. In June of 1789 President Washington ordered the heads of his executive departments to submit reports on their operations, as authorized by Article II, Section 2, Clause 1 of the Constitution of the United States.
[The President] may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices
U.S. Constitution, Article II, Section 2, Clause 1
However, these EOs have not always been used for such benign purposes. For example, in 1942 President Franklin D. Roosevelt issued an EO mandating the illegal internment of Japanese Americas.
Starting in 1862, the Secretary of State would issue numbers for each Executive Order. What was the first numbered order? President Abraham Lincoln issued an Executive Order establishing a provisional court in Louisiana. Since 1936, EOs have been collected in the Code of Federal Regulations.
Authority of Executive Orders
Contrary to President Obama’s assertion, Executive Orders are not all powerful, and not intended to bypass the legislative process. They are not part of the supreme law of the land, as established by Article VI, Clause 2.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;
U.S. Constitution , Article VI, Clause 2
If Executive Orders are not part of the supreme law of the land, where do they get their authority? Mostly from the general ignorance most Americans have when it comes to the Constitution.
Notice that EOs are recorded in the Code of Federal Regulations, not the United States Code (USC). These regulations are often enforced as if they were law, even though they are not. Remember, all power for making laws is vested in Congress, not the presidency.
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
U.S. Constitution, Article I, Section 1
No federal regulation is law, contrary to what federal courts have opined. Congress may pass a law authorizing an executive agency to pass regulations, but those are not laws. Congress’ attempt to thrust their lawmaking power onto the executive branch is just another violation of the Constitution, since Congress is not authorized to delegate their lawmaking power. Since regulations are not law, by extension Executive Orders, which are instructions on regulations, are also not laws. Like any other power, the president’s power to issues orders to the executive departments cannot legally be used to bypass the Constitution or laws of the United States. Executive Orders are orders to the executive branch, not the American people. In other words, they are not edicts.
Orders vs Edicts
Although often treated as such, Executive Orders are not edicts from the federal government.
A positive law promulgated by the sovereign of a country, and having reference either to the whole land or some of its divisions, but usually relating to affairs of state. It differs from a “public proclamation,” in that it enacts a new statute, and carries with it the authority of law.
Contrary to the way they may act, the President is not the sovereign of the nation. He is an executive of the government of the United States, nothing more. He is an employee of the states, hired by the states via an election, and bound to the laws established by the states in the compact that created the office of the president: The Constitution of the United States. Since his powers are primarily limited to executing the laws of the United States, including the Constitution, any Executive Orders he may issue that are beyond his power are void and legally meaningless. If Executive Orders cannot be directed at the American people, how does a President create orders like Biden’s vaccine mandate? If you read these EOs, you’ll find the President ordering his executive agencies to violate the Constitution. In the case of Biden’s fake vaccine mandates, the President ordered executive agencies and departments to establish rules. Some of these rules were limited to the executive agencies, others were to promulgate federal regulations in violation of the Constitution. In other words, not only does the President violate his oath of office, but those who comply with his illegal orders do as well.
So why did President Obama use his pen and phone? Because so few Americans have an even basic understanding of the Constitution, they simply believe the lie they have been told: That the President is the most powerful man in the world. This includes law enforcement agencies at all levels. That means the deputies enforcing an illegal executive order doesn’t realize they are committing a crime because they’ve been taught that when the President issues an order, people are expected to follow it without question. That is not how a republic works, but that is how a dictatorship does. That also brings us to the problem created by our ignorance.
Enforcing Executive Orders
How many companies with more than 100 employees simply followed what they had been told, that President Biden had issued an executive order requiring them to institute a vaccine mandate? They had seen in the news that the President had announced sweeping mandates requiring them to either vaccinate their employees or require weekly testing. Most of these corporations complied. However, not only did President Biden have absolutely no legal authority to issue such a mandate, I don’t believe he actually signed an Executive Order to that effect. Such has been the brainwashing of the American people that thousands submitted to an illegal mandate that was never actually made, only announced. The few Americans who pointed out that such a mandate was a blatant violation of the Fifth Amendment’s Due Process Clause were ridiculed, threatened, fired, and eventually vindicated. All because the majority of Americans don’t know that our President is not a king.
What most Americans seem to forget is that the federal government is not able to enforce all of their laws, rules, and regulations. They are dependent on the state and local governments to do much of the enforcement for them, but this is a good thing. The federal government has no legal authority to order state and local officials to enforce their laws. This was confirmed by the Supreme Court in the case Printz v. United States.
The Brady Act’s interim provision commanding CLEOs to conduct background checks, § 922(s)(2), is unconstitutional.
Printz v. United States, 521 U.S. 898 (1997)
Once the state and local enforcement agencies realize they’re not legally bound to enforce federal law, they can learn to stand up and say no. They can look at these illegal Executive Orders and just say no. They can look at the innumerable unconstitutional regulations and say no. They can even go so far as charging and arresting any federal agent who breaks the law, including the Constitution of the United States, for crimes they commit within their jurisdiction. What a wonderful thing knowledge can be.
Conclusion
When did Executive Orders become edicts from a monarch? Like so many things, it happened slowly, then very rapidly. It started with Congress not wanting to write laws, so they started writing “frameworks” and turned over the details to the executive agencies. We didn’t think too much about Congress abdicating their lawmaking power to the executive branch, so we said nothing. Then, as the American people began looking at the President more and more like a king, expecting him to take care of things, it made sense that he would issues edicts to the American people.
We’ve all been told that knowledge is power, but that isn’t exactly true. Knowledge itself can do nothing. However, knowledge used effectively is power. The tyrants, in Washington, D.C. and your state house, are depending on your ignorance to allow them to get away with their malfeasance. Which I believe is why our first Chief Justice said:
Every member of the State ought diligently to read and to study the constitution of his country, and teach the rising generation to be free. By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.
John Jay, First Chief Justice of the United States
© 2023 Paul Engel – All Rights Reserved
E-Mail Paul Engel: paul@constitutionstudy.com