Problems With Executive Orders - A Preliminary Rant

By Phillip G. Kayser · 10/12/2015

It is my contention that most modern presidential executive orders are in violation of Article 1, section 1 of our Constitution, which stipulates, “All legislative Powers herein granted shall be vested in a Congress of the United States…” This could not be more explicit.

The “all” rules out any legislation from the courts or the executive office. The “herein granted” indicates that there can be no legislative powers that the federal government has than those that are enumerated in the Constitution. The word “vested” means that these powers are fixed in one location and may not be delegated to agencies, committees, the new twelve member Super Congress, or any other body.[1] Congress cannot confer lawmaking power by statute since the Constitution gives no enumerated power of creating lawmakers.[2] Of course, many of the executive orders issued in the past few decades have violated the constitution not only by engaging in legislation, but also by adding powers and duties to the federal government that cannot be found in the Constitution.

But far more important than the routine violation of the constitution is the lack of Biblical authorization for the presidency to legislate by executive order. Executive orders violate the limited role Scripture gives to a president and the jurisdictional limits of the executive office. Romans 13:1-7 gives two functions for civil government: to praise good (such as giving recognition for heroism) and to punish evil. The specific evils that civil governments are to punish are laid down in God’s Word.[3]

Nowhere in Scripture is the government permitted to prevent evil by a police state or by overthrowing dictators in other nations that we are not at war with. Nowhere is the government given the right to create schools, provide health care, establish old age pensions, seize land for national parks, grant land to companies, oversee the use of farmland, or promote an economic redistribution of wealth. Yet many presidential executive orders deal with these kinds of issues. Scripture authorizes courts, lawmakers, state, and county officials, and even citizens to resist such presidential executive orders.[4]

  1. Unfortunately, this understanding was first overturned by the Supreme Court in 1928 (J.W. Hampton, Jr & Co. v. United States) in which they said, “legislative action is not a forbidden delegation of legislative power” if the “Congress shall lay down by legislative act an intelligible principle to which the person or body [to whom the power is delegated] is directed to conform.” The courts have somewhat limited delegation in 1935 (both Panama Refining Co., v Ryan and Schechter Poultry Corp v. United States) and 1980 (Industrial Union Department, AFL-CIO v American Petroleum Institute) but since 1989 has taken almost a hands-off approach to whether delegation is constitutional. However, we can work to overturn this modern trend to ignore the Constitution.

  2. The only exceptions are very restrictive. The exceptions are the enclave clause (Article 1, section 8, clause 17) which affects the governing of Washington, D.C., and the “property clause” (Article 4, section 3, clause 2) which made the Northwest Ordinance provisions constitutional. But neither of these provisions gives any authorization for either the courts or the executive office to legislate.

  3. See First Principles and Governmental Principles for Scriptural proof of this.

  4. Josh 2:1-16; 2 Samuel 24:3; 1Kings 12:16-24; 18:3-4; 2 Chronicles 21:10; 26:20; etc.