It’s worth remembering (especially now) that the President of the United States does not make laws – he executes them. Almost all of the “power” of the President derives exclusively from his need to be able to execute the laws that Congress has passed. The Constitution is very clear on this point: Congress makes the laws; the President carries them out1.
The use of “executive orders” has come up a lot (again, especially recently) and to a lot of people they can seem like laws – but despite appearances, they are not. Fundamentally, “executive orders” are instructions on how to carry out an existing law – they cannot create new laws nor can they “roll back” existing laws.
The confusion perhaps comes from the broad scope of “regulation,” which feels like laws, and carries the force of law, but is not technically law. Congress generally doesn’t get into the minutia of how to carry out laws – it will pass a law that says something like “pyramid schemes are illegal and running one will be subject to 10 years in prison.” Then, it’s up to the President (usually delegated through one or more of the agencies under him) to figure out how to do that, by implementing regulations – for example, regulations that require companies to submit reports proving they aren’t doing pyramid schemes, that require federal employees to investigate reports of pyramid schemes, and so on. Depending on how the original law is written, this may give some broad leeway for the President to decide how to focus efforts on combating pyramid schemes, but generally Presidents must stick to the letter of the law or else their actions will be either struck down by the Supreme Court or Congress may pass additional laws to clarify what they meant. (Congress also controls the budget – the President may want to carry out a law in a certain way, but Congress may not give enough money in the budget for this to be done – much of the effort of being President often boils down to figuring out how to “make do” with whatever budget Congress has given you.)
All this is intended to be a balancing act between the power of Congress and the power of the President (which is as it should be) – even if Congress wrote a really broad law, the President’s ability to do anything with it could be limited by Congress not giving him the budget he needs, and of course Congress could amend or repeal a law at any time.
All this is to say that the common perception of the President being “in charge” isn’t really true – Congress is in charge2; the President is in charge of carrying out the laws Congress has passed3.
Lately, however, the President has been acting like he is in charge – which is both wrong and fundamentally unconstitutional. Moreover, it is also a violation of his sworn oath to “faithfully execute the Office of President of the United states, and to preserve, protect, and defend the Constitution.”
For the first part, “faithfully execute,” that means to execute the office “in a loyal way” or “in a way that can be trusted.” Loyalty by the President to his office is a bit hard to define – but we can perhaps think of it as being faithful to the precedent set by your predecessors and by the traditions of the office. Thus far, this current President has done neither – indeed, he has explicitly broken precedent and gone beyond or outside the traditions of the office.
The “in a way that can be trusted” definition is a bit easier to consider – it is clear that the current President is acting in a way that cannot at all be trusted (as far as “what should or can a President do” is concerned). That he is a known and egregious liar only adds weight to this point.
For the second part, “to preserve, protect, and defend the Constitution,” by using executive orders to usurp the power of Congress, the President is doing the opposite of preserving or protecting the Constitution – these actions would explicitly compromise the Constitution, and the very attempt of using them attacks the validity of the Constitution. Further, by claiming that the jurisdiction of the courts doesn’t apply to the actions of the President, this goes against the plain text of the Constitution – which doesn’t sound like “defending” to me.
We generally hold sworn oaths to be serious business, and breaking them to be equally serious. I can think of nothing more serious than blatantly breaking the oath of office, and of nothing more fitting than to be removed from that office for breaking that oath.
- The President can object to a new law by vetoing a bill before it become law, of course, but this is the limit of his involvement in lawmaking – he cannot make a new law with this power, nor can he retroactively veto a law that already exists… and in the end, Congress still has the power to override a veto (even if it is rarely used). ↩︎
- Strictly speaking, “the people” are in charge – remember, all of the power and authority of government derives “from the consent of the governed” – we just delegate that power and authority to Congress for what is effectively convenience’s sake. ↩︎
- There are exceptions to this, of course – there are some powers that are assigned by the Constitution to the President alone, but that’s not what we’re discussing here. ↩︎
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