Upon his initial election, President Barack Obama boldly declared his intent to take action without solely relying on Congress. “I’ve got a pen,” the president asserted.
Supporters of Obama’s political ideology likely embraced this statement. Perhaps you are among the millions of Americans who believe in the necessity of presidents, governors, and bureaucrats taking action, even without the explicit approval of the legislative branch (i.e., the people).
If this resonates with you, it’s time to reconsider your stance and allegiance to our Constitution.
Basic civics teaches us that the legislative branch is responsible for creating laws, the executive branch enforces them, and the judicial branch interprets them. Among these branches, the legislative holds significant importance as the entity that can enact new laws or modify existing ones — or at least that was the intended structure.
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In reality, all three branches are now involved in lawmaking, leading to a notable shift in the size, reach, and trust in government. This trend is evident at both the federal and state levels.
Take, for example, President Joe Biden’s recent decision to forgive student loans. This action was not authorized by Congress through legislation. Instead, the Biden Administration is using reinterpretations of early 2000s legislation to “forgive” the debt (i.e., allocate the cost to taxpayers), despite court rulings deeming it unconstitutional.
In the ongoing power struggle over the separation of powers, executives (be it presidents or governors) have consistently pushed the boundaries of their authority. The framers of the Constitution foresaw this scenario, leading them to incorporate numerous checks and balances, giving precedence to the legislative branch.
However, recent executive orders have blurred the distinctions so significantly that restoring our founding principles seems like a daunting task.
Biden has issued 138 executive orders, while former President Donald Trump issued 220 during his tenure, many of which delved into policymaking.
Various courts have also engaged in similar actions. For instance, the U.S. Supreme Court altered portions of the Affordable Care Act in 2012 to preserve the law with a 5-4 majority vote. In another instance, the Nevada Supreme Court invalidated a voter-approved amendment requiring a two-thirds majority for tax increases to boost education funding.
Are these actions interpretations of the law, or are they indeed policymaking ventures?
On the state level, Washington Gov. Jay Inslee has frequently resorted to executive orders to enact policies that failed to pass through the Washington state Legislature, such as banning fishing during the pandemic—a measure never approved by the legislature.
While Montana Gov. Greg Gianforte and Idaho Gov. Brad Little have been more cautious in overstepping the legislative branch’s authority, bureaucrats have a history of finding loopholes.
An illustrative example is the proposed $685 million acquisition of the University of Phoenix by the University of Idaho. The Idaho state Board of Education unanimously endorsed the deal, catching many lawmakers and the public off guard. The proposal was made public just 24 hours before the vote, despite appropriations to the University falling under the Legislature’s jurisdiction.
As the late Supreme Court Justice Antonin Scalia frequently emphasized, if you desire a law, persuade enough of your fellow citizens to pass it. If you seek a role in policymaking or appropriations, become part of the legislative branch.
If the Congress or Legislature appears inactive, then the solution lies in electing a new Congress or Legislature.
Chris Cargill is the president & CEO of Mountain States Policy Center, an independent, free market think tank that covers Idaho and Montana. Online at mountainstatespolicy.org.
