Executive Encroachment

To focus on the content of an executive order is to be distracted from the underlying problem. Addressing this not only restores the public's political oversight power over lawmaking, it also saves us a lot of trouble. Stopping Presidents from making law by executive order at all will keep us from wasting our efforts fighting one order after another.

Only Congress may make laws,
not the Executive branch. The President governs the military, the Departments of State and Justice and the bureaucracy. Executive orders govern the internal workings of these. They may not impact anyone who doesn't work for the Executive.
If an executive order impacts the public's rights, responsibilities, powers, privileges or immunities it's a law and unconstitutional.

This includes people of other countries. There are three ways the United States can impact the lives of people in other countries:

  • treaties
  • immigration
  • and war

The Senate must approve treaties. Only Congress can declare war. And only Congress may make immigration law. Encroachment by Presidents and abdication by Congress have affected each of these, but the Constitution is clear and we have the power to restore each to constitutionality.

The Constitution is set up this way because the people have more power over Congress. Because of erosion it may not seem so (it certainly didn't to Franklin Delano Roosevelt, who expanded the executive agencies and the use of executive orders) but since we are resolving erosion now anyway we have nothing to lose. FDR might have done better to advise the public on restoration instead in the first place. The Presidents to follow have steadily expanded both the bureaucracy and the use of executive orders to make law.

Article I, Section 8:

"The Congress shall [...] make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government

of the United States."

Article IV’s Equal Privileges and Immunities clause requires doing this the same way in every state.

Article IV, Section 2:

"The Citizens of each State shall be entitled

to all Privileges and Immunities

of Citizens in the several States."

The Executive branch may not encroach on Congress’ legislative power by using their enforcement power to legislate by enforcing some federal laws but not others. Or by enforcing any law differently in various states, or against various people. The Department of Justice may not abdicate its own Article II executive power to states. Article IV prohibits allowing states to pick and choose which federal statutes will be enforced either by themselves or by the United States, and Article VI prohibits states’ complying with federal law selectively anyway.

Article VI:

"This Constitution, and the Laws of the

United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme Law of the Land; and the Judges of every State

shall be bound thereby [...]"

There's another Executive encroachment problem. Neither Congress nor the Executive may call laws policies, or policies laws, because laws and policies differ in enforcement. Laws are made by Congress under Article I and are fully enforceable. Executive policies and orders are subject to laws and should only be administrative, enforceable in administrative court.

​​President in Conflict

The Executive must support the Constitution but must also enforce federal law. The Constitution is the highest law but is largely couched in general terms subject to interpretation. This amendment addresses how to uphold the Constitution when laws, policies or rulings invalidly amend it (Restoring Invalidly Amended Text). But can't the President or Executive branch officers just choose to enforce one or the other?

Article II, Section I:

“I do solemnly swear (or affirm) that I will faithfully execute the Office

of the President of the United States, and will to the best of my Ability,

preserve, protect and defend the Constitution of the United States.”

No. Executive branch officers have their own oaths but the Constitution’s oath of the office of President is above them. It contains the mandatory performance standards of faithfully executing the office and of preserving, protecting and defending the Constitution to the best of their ability, not just their job descriptions, and not just the Constitutional clauses Congress has enacted with statutes. However, 

 Article II, Section 3:

“He [the President] shall take care that the laws be faithfully executed,”

the Take Care clause requires that the President and the Executive branch take care to faithfully execute laws passed by Congress and treaties signed by any President. This is also a mandatory performance standard (see Officers Must Support the Constitution). The Constitution is higher law and executing the office includes both, but statutes and treaties are usually more specific so judicial interpretation affects them less. 

  • “Take care that…” doesn’t mean give it due diligence, it means be especially careful.

  • “Faithfully”, as in “an article of faith”, something beyond challenge, has no wiggle room. It doesn’t include the possibility of making arbitrary, or indeed any, exceptions.

Putting both of them in one command is like an exclamation point.

  • And this command is in addition to Article II, Section 1’s granting the power in the first place, and requiring an oath to faithfully execute the office.

Taking care to faithfully execute the laws means all of them. Everywhere. Against anyone. The Executive may claim discretion regarding some details of how to proceed when executing or enforcing the law, but not whether or when to execute or enforce the law. Not only does the Constitution not grant the Executive the power of discretion regarding execution or enforcement of the law, it expressly and vehemently prohibits it. 

Treaties and Executive Encroachment

The Constitution's structure matters. It begins with "We the People" and ends with our representatives' signatures and our declaration of intent to ratify the Constitution (or not). This keeps this government in our hands and in a more general sense affirms that ordaining and establishing any government is a continuous process. We didn't, and can't, just create a government, give it powers, and lose those powers to it permanently. Ordination and establishment, our active acceptance of government, is continuous.

By the same token and affirmed by the same structure every right, responsibility and power vested in the United States or any state by the Constitution is continuous. None can be removed by any non-Article V action because these rights, responsibilities and powers are continuous.

Article II, section 2:

"He shall have Power,

by and with the Advice and Consent of the Senate,

to make Treaties,

provided two thirds of the Senators present concur; [...]"

Presidents have claimed that once a treaty is made the Senate's advice and consent role ends. But making a treaty is an ordained and established power. It is continuous. Changing the terms of a treaty is making the treaty, and requires the Senate's advice and consent. Withdrawing from a treaty is making the treaty, and requires the Senate's advice and consent. 

A claim that the Senate's role ends when the treaty is signed is no different from a President trying to change a federal law by claiming that once passed its execution and enforcement are under the Executive. Congress' power to make each law and the Senate's power to advise on & consent to each treaty are continuous.

Article III, section 2:

"The judicial Power shall extend to all Cases, in Law and Equity,

arising under this Constitution,

the Laws of the United States,

and Treaties made, or which shall be made, under their Authority; [...]"

If a President tries to change or withdraw from a treaty without the Senate's advice and consent, they must resort to the courts to uphold their power under the Constitution.