Federalism: The Fatal Weakness of Executive Orders
During his first three weeks in the White House, President Joe Biden issued more than fifty executive orders.
Preoccupied with a preposterous second partisan impeachment of Biden’s predecessor, in the same three weeks, the United States Congress passed…exactly…nothing.
There is no historical precedent for the volume of Biden’s early executive orders.
Among them, Biden ordered a moratorium on deportations, and an end to “harsh and extreme immigration enforcement” – the duly-enacted laws regulating security at America’s southern border. He eliminated the “Remain in Mexico” program to “restore” the U.S. asylum system, and reinstated a mandatory “U.S. refugee resettlement program” over which Biden assumes states and local communities will have no control.
Biden ordered that “undocumented immigrants” (read: illegal aliens) be included in the U.S. Census, an accounting that allocates seats in the U.S. House of Representatives and (extra-legal) federal tax money to jurisdictions hosting illegals.
One order launched “an initiative to advance racial equity.” Apparently, Biden imagines that the equality of opportunity guaranteed in America’s Bill of Rights can be upgraded somehow by arbitrarily enforcing “equity.”
One wonders, though, who will hold the right to decide what, exactly, is “equitable,” who will enforce “equity” – and how?
Disregarding its negative effects on unit cohesion and military readiness, Biden also ordered a repeal of a ban on transgender people serving openly in the U.S. military. And he arbitrarily imposed federal rules for state-run elections that the Supreme Court has already set aside.
Biden “paused” oil and gas leasing on U.S. lands/waters, revoked permits for the partially-built Keystone XL pipeline, a private sector project, and elevated “climate change as a national-security, foreign-policy priority.”
Among Biden’s emptiest gestures was a 100-day directive requiring face masks and social distancing on all federal properties, and for federal workers, even though masks have proven ineffective at stopping or even slowing the spread of COVID-19.
Some states have reacted to Biden’s executive orders by filing lawsuits against one or more in federal court, others have passed legislation nullifying or refusing to enforce them within their borders.
Every one of America’s fifty states has the constitutional right – a legal obligation, in fact – to do either or both when their constitutional sovereignty or the rights, welfare and/or safety of its citizens are unconstitutionally infringed upon.
States are firmly within their constitutional rights to challenge, nullify, ignore or even penalize attempts to impose non-legislated presidential orders on their jurisdictions.
After winning the American Revolution, the colonies became thirteen independent nation states that negotiated and ratified a common system of government allowing them to present a united front to the rest of the world.
Under the resulting Constitution of the United States of America, each state ceded only enumerated parts of its individual sovereignty in order to form a federal government.
Federalism is a system that unites separate states while allowing each to maintain its own integrity. In order to safeguard individual and local liberties, America’s federal system preserves states’ rights by constitutionally decentralizing power.
The states created the office of the presidency. Constitutionally, then, the states are a check on presidential power, not subject to it.
There was a time in America, when almost any attentive high school senior would have learned this.
There was also a time when every state would have legally challenged or nullified Mr. Biden’s broad usurpations of the enumerated powers of the federal government’s Legislative Branch.
In fact, not long ago, Congress itself would have invoked the constitutional system of checks and balances to stop presidential presumptions, or passed bills to institutionalize them.
But, congressional Democrat leaders know that many of Biden’s executive orders couldn’t gather enough votes from their own members to pass both chambers.
Democrats are known for pursuing their policy goals “by any means necessary,” so their failures to act in the face of presidential usurpation of the Congress’s enumerated powers serves as tacit admissions that congressional Democrats would pass the same measures if the public backlash wouldn’t cost them the sine qua non of political incumbency – reelection.
Many Democrats’ jobs will be lost regardless.
Congressional Democrats’ indifference to/acceptance of Biden’s unpopular executive orders will help flip the House in 2022, perhaps the Senate, as well.
Until then, Democrats’ already-tenuous hold on Washington power will slip away through court challenges and nullification.
Federalism is indeed the fatal weakness of executive orders.
