A couple of years ago, after President Donald Trump backed out of the Paris Climate Treaty and the Iran Nuclear Deal, I wrote a column justifying his actions because those deals had been made by executive orders so legally could 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 all treaties. The Paris Accords and the Iran deal are 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 U.S. 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 to the president. After the Brown v. Board of Education ruling, President Dwight Eisenhower issued an order to desegregate schools.

Finally, though not in the Constitution, allowing presidents to act in time of emergency seems legitimate, but only for the duration of the crisis. FDR, who guided the nation through two of the hardest episodes in our history – the Great Depression and World War II, used orders to create the Works Progress Administration and later the Manhattan Project.

Under this thinking, any of Biden’s executive orders issued to stop COVID have some validity.

The second part of the Supreme Court’s ruling of when Congress delegates is more problematic. Who’s at fault is too long for this article but starting in the Progressive Age and expanded during FDR and the Cold War, presidents little by little have taken away (and Congress has let them) the primary task of Congress which is to make laws.

Whereas orders were meant for executing presidential duties, many now are used to bypass Congress to legislate.

Biden needs to be careful. For a man who claimed Trump was a tyrant, Biden has more than doubled the number of Trump’s executive orders for the same amount of time in office.

Dr. James Finck is an associate professor of history at the University of Science and Arts of Oklahoma in Chickasha. Follow him at www.Historicallyspeaking.blog.

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