Biden’s Orders Continue the Presidency’s Slide Toward Elective Monarchy

“Ease up on the executive actions, Joe,” The New York Times urged recently inaugurated President Biden last week. While supportive of the president’s broadly progressive agenda, the newspaper’s editorial board found his flurry of executive orders and other unilateral actions both troubling and vulnerable to easy reversal by future presidents. “This is no way to make law,” the Times added.

Unfortunately, creeping rule-by-decree has become common for presidents, and Biden’s impatience with the normal frustrations of the legislative process builds on the conduct of his predecessors. While partisans tend to pick sides on executive power depending on who holds the White House, the devolution of the presidency into something resembling elective monarchy should worry everybody.

Not that executive orders are supposed to be royal decrees. At their root, they are nothing more than the authority of leaders to set rules for their organizations.

“Presidents have historically utilized various written instruments to direct the executive branch and implement policy,” the Congressional Research Service noted in 2014. “These include executive orders, presidential memoranda, and presidential proclamations.”

“The substance of an executive order, including any requirements or prohibitions, may have the force and effect of law only if the presidential action is based on power vested in the President by the U.S. Constitution or delegated to the President by Congress,” the 2014 report added.

But the limits of such orders are fuzzy since there is no mention of them in the Constitution; they evolved as a matter of convenience and so have their powers.

“When carried out pursuant to legislative or constitutional authority, executive orders are unobjectionable,” the Cato Institute’s Gene Healy observed in his 2008 book, The Cult of the Presidency. “Yet many of the orders issued by modern presidents lack such authority and justification.”

Professor Dana D. Nelson of Vanderbilt University agrees. In her 2008 book Bad for Democracy, Nelson called such unilateral commands “power tools” that “allow the president to enact both foreign and domestic policy directly, without aid, interference, or consent from the legislative branch.”

That’s not to say that executive actions can’t be challenged; judges do occasionally overturn them. But it takes less time to iss