During the current COVID crisis mayors, governors and the president have been using executive orders or mandates to change what is legal. Is that legal? They aren’t kings. Isn’t that what legislative bodies like school boards and Congress are supposed to do?
President Trump gets denounced by Democrats for “destroying democracy” and trying to be a dictator. The non-sequitur “He’s literally Hitler” has become a joke. Republicans have denounced New York Governor Cuomo as “a murderer” for ordering COVID patients to be sent to rest homes. These ad hominem attacks obscure the real issue. Let’s examine this on the federal level.
Clown College
The Constitution says that the president “…shall take Care that the Laws be faithfully executed…” (Article 2, Sec. 3). For sake of example, let’s say that Congress passed a law mandating that a Clown College be established in each of the fifty states within two years. The President could issue an executive order directing that states with the lowest percentage of clown population be given priority in establishing the new colleges. He could determine which states get clown colleges the first year and which the second year.
an executive order, and probably illegal
An executive order he could not legally issue, however, would be that groups of states, for instance New England or the Dakotas, be served by one centrally located clown college, because this contradicts what Congress specified in the law. If he determines that insufficient funds or other extenuating circumstances exist preventing establishing a clown college in every state, he would be obligated to return to Congress and ask for additional funding or a change in the law.
Why a Debate?
In summary, executive orders are tools that the President uses to carry out the laws created by Congress, not a tool to create new laws or change laws passed by Congress.
The conundrum that often presents itself is when a law is vague. A president can say, “That’s what the Congress meant. I am carrying out the intent of the law.” If enough people disagree, that’s when Congress must act quickly (not likely), or the courts become involved to determine what the law means.
Precise use of language, especially when writing laws, is critical. But reality is subject to change, and what appeared clear cut in January, may be open to interpretation by June.
President Trump and Governor Cuomo both deserve the benefit of the doubt in a crisis. Our system of government is built to work things out over the long haul.
