A stack of binders towered on the desk of the president on his very first day in office. Each one was a new Executive Order. He seemed in danger of spraining his wrist as he plowed through them, at one time admitting that there were so many that he was unsure which one he happened to be holding up. In short order, 22 Executive Orders were signed.
This effort was not the product of careful deliberation by lawmakers. Instead, much of this was a reversal of similar orders generated by the prior administration. Signing Executive Orders has become a showy maneuver designed to impress the masses, even when some of them have no practical effect. Presidents have come to love Executive Orders – since the Carter Administration they have averaged issuing almost 50 orders per year. (Biden may reach that number in his first 30 days!).
Yet none of the orders are actually laws. They do not involve elected lawmakers, and no one votes on them. They are simply a way for a chief politician to do whatever they like. As the American Bar Association points out, “Executive orders are not legislation; they require no approval from Congress, and Congress cannot simply overturn them.”
Here in Chester County we may feel insulated from some of these orders, especially since many are ineffective political signaling, like pretending to end Federal use of private prisons (“Absolute 14006”, which neither ends the practice nor takes effect for years, and when it does, affects almost none of the prison system).
But there are Executive Orders that have a very real and often detrimental affect on Chester County. This is because Pennsylvania’s Governor Wolf has made copious use of his own Executive Orders to bypass the law and force businesses and citizens to do whatever he deems correct.
Lawmakers and voters have no say in these decisions. The state house may challenge them, and even the federal courts may declare the orders to be unconstitutional. But an army of lawyers and hand-picked judges can generate endless appeals that circumvent the system and cement Wolf’s mandates for months or worse.
Just reading the language in one of Wolf’s orders is enough to make you cringe: “WHEREAS, in addition to my general powers, during a disaster emergency I am authorized specifically to suspend any regulatory statute prescribing the procedures for conduct of Commonwealth business, or the orders, rules or regulations of any Commonwealth agency if strict compliance with the provisions of any statute, order, rule or regulation would in any way prevent, hinder or delay necessary action in coping with the emergency” (Covid declaration, March 2020).
In other words, even if laws exist that prohibit the enforcement of my declaration, they are to be ignored because I say so. Therefore voters can put lawmakers in office, these lawmakers can deliberate and create laws at the behest of their constituents, and one chief executive can brush the system aside because he knows better than all the voters and law makers in Pennsylvania.
The result is suffering Pennsylvanians including business owners, students and parents. Populous Chester County has suffered tremendously. State representatives are exasperated that ‘emergency orders’ can be extended endlessly, mocking the very concept of an emergency.
As Supreme Court Justice Alito said in a speech last November, “Every year, administrative agencies acting under broad delegations of authority churn out huge volumes of regulations that dwarf the statutes enacted by the people’s elected representatives. And what have we seen in the pandemic? Sweeping restrictions imposed, for the most part, under statutes that confer enormous executive discretion.”
Chester County voters may get a chance to curtail the powers of our governor at the May elections, if we are lucky. In the meantime, we must work towards removing mandates by power-hungry executives and put them back into the hands of the voters and their representatives. This May we may have our first chance to do that.
As Libertarians, we tend to be suspicious of lawmaking in general. But what we cannot abide is a politician taking the law into their own hands without discussion or legal recourse. We may not be able to soon stop presidents from these anti-freedom maneuvers, but we can start at home by supporting change in Pennsylvania.