President Joe Biden signed 77 executive orders in 2021 and 29 in 2022. He has also signed out 78 total presidential memoranda and dozens of presidential determinations and administrative orders to date.
Executive orders are official presidential directives that generally have the force of law. They’re intended to direct actions within federal agencies (the “executive branch” of the federal government).
All executive orders (EOs) are supposed to identify whether the order is based on the constitutionally granted powers or those delegated to a president by Congress. They’re subject to legal review, and federal courts can cancel those deemed unconstitutional—or violating existing federal law. Congress can also revoke an executive order through the passage of superseding legislation.
Presidential memoranda are similar in purpose and intent but aren’t required to be reported in the Federal Register, nor are they required to include a justification of presidential authority. These are used to micromanage the federal bureaucracy and often exceed the constitutional authority of presidents. They can also be revoked through congressional action.
Constitutional lawyers and scholars identified several of the Biden executive orders (among many) as blatantly unconstitutional, yet they haven’t been challenged by Republicans.
EO 13990, which canceled the Keystone XL pipeline, violated the takings clause of the Fifth Amendment of the U.S. Constitution: “Nor shall private property be taken for public use, without just compensation.”
EO 13985, which promotes race-based discrimination throughout the federal government, violated the equal protection clauses in the Fifth and Fourteenth amendments that protect the right to “life, liberty, and property” without interference from the government.
EO 13988 mandates that any schools that receive federal funding must function as if biological males who claim to be females are the same as females and vice versa or risk losing that funding. This EO also violated the equal protection clauses in the Fifth and Fourteenth amendments.
The EOs and presidential memoranda signed by Biden provide direction (and cover) for agencies that lean forward in converting those directives into administrative law. The problem is that unconstitutional executive orders beget unconstitutional administrative laws and regulations within the federal agencies that comprise the “administrative state,” and once written and implemented, they’re very difficult to excise.
Furthermore, many rules combine executive, legislative, and judicial functions in violation of the separation of powers implemented by the U.S. Constitution. Federal agencies shouldn’t be “judge, jury, and executioner” when implementing and enforcing federal laws.
A copy of the U.S. Constitution in Washington on Dec. 17, 2019. Andrew Harnik/Pool/Getty Images
Additionally, many of the denizens of the administrative (or regulatory) state are authoritarians who believe in the power of government to regulate businesses and individuals, as well as to ensure equal outcomes for Americans (the Marxist diversity, equity, and inclusion agenda favored by the Democratic Party). These excesses must be constantly guarded against through strong congressional oversight of all federal agencies. With the rapid rise of the administrative state over the past 100 years, it could be argued that Congress has failed in its oversight responsibilities.
Republicans were fixated on stopping the Democrats’ push for an “omnibus spending bill” to fund Democrat spending priorities (which haven’t been detailed for debate) through most of 2023. The ever-reliable Democrat media outlet CNN characterized Republican actions toward that end as “Republicans try to sabotage year-end spending bill.”
The CNN article characterized the debate as “good governance” (funding the Democrats’ excesses) versus “politics” (Republican efforts to rein in out-of-control government spending). Never mind the ballooning $31-plus trillion national debt or the fact that the “good governance Democrats” and their RINO allies didn’t pass a single appropriations bill during the Democrat-controlled 117th Congress (the standard process for approving all federal funding).
“Not a single appropriations bill has moved through subcommittee, committee, or come to the floor of the Senate this Congress,” Sen. James Lankford (R-Okla.) said in December 2022.
But while all the attention was focused on the omnibus spending bill, a debt ceiling increase, and/or a short-term continuing resolution, the minions in the federal bureaucracy are busy writing administrative laws and extending federal regulatory control into every nook and cranny of America. Republicans in Congress shouldn’t lose sight of the continuing production of regulations being added to the Federal Register with each passing day.
As of Feb. 1, 2022, the Biden administration posted more than 2,000 proposed rules and more than 3,000 final rules in the Federal Register. Of those, nearly 90 are so-called major rules. A major rule is defined as having an economic impact of greater than or equal to $100 million, resulting in a major increase in costs or prices to consumers and businesses or causing a significantly adverse effect on “competition, employment, investment, productivity, or innovation, or on the ability of the United States-based enterprises to compete with foreign-based enterprises,” according to the GW Regulatory Studies Center.
Republicans of yesteryear were concerned about the rapid rise of Franklin D. Roosevelt’s administrative state. In 1946, Congress passed the Administrative Procedure Act (APA), which laid out how federal agencies are supposed to make and enforce administrative laws and regulations. The Act requires public involvement in the rule-making process, keeping the public informed of the content and formal rule-making process and procedures and incorporating judicial review into the process.
That last requirement is particularly important, as administrative laws and regulations are subject to judicial review. However, the Republican Party has no apparent strategy to use the APA to expose federal regulations that average Americans wouldn’t support if made aware of them.
The regulatory actions of the Department of Interior, Department of Commerce, the Environmental Protection Agency, and even the Department of Agriculture related to the Democrats’ “Green New Deal” need to be carefully scrutinized, exposed, delayed, and defeated—through Republican lawsuits under the APA if necessary.
Other actions that Republicans could take to defeat proposed new federal regulations that are unconstitutional include: forcing federal agencies to hold well-publicized public hearings during the rule-making process; implementing a coordinated media campaign to inform and educate the public on proposed new rules; and coordinating a campaign by Republican voters and activists to demand actions by Congress to stop agencies from implementing laws that bypass Congress and the will of the people.
Concluding Thoughts
Biden has signed dozens of unconstitutional and otherwise questionable executive orders and presidential memoranda that are being written into administrative law throughout federal agencies. Many exceed his constitutional authority and usurp the separation of powers in the U.S. Constitution that requires Congress—not the president—to “write all federal laws.”
Congressional oversight—and indeed thwarting the passage into law of these arbitrary rules—has virtually disappeared over the past two years.
One weapon in Congress’s arsenal to conduct that oversight is the Administrative Procedure Act, which provides provisions for involving the public in the direct review and development of federal rules and regulations. Republicans should implement a formalized effort to coordinate with Republican voters to defeat unconstitutional rules and regulations.
Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
Stu Cvrk
Author
Stu Cvrk retired as a captain after serving 30 years in the U.S. Navy in a variety of active and reserve capacities, with considerable operational experience in the Middle East and the Western Pacific. Through education and experience as an oceanographer and systems analyst, Cvrk is a graduate of the U.S. Naval Academy, where he received a classical liberal education that serves as the key foundation for his political commentary.
