For a sense of how alarmed House Democrats are about the upcoming midterms, consider what they want President Biden to do about their failed legislative initiatives. According to an Associated Press report, caucus leaders are “urging him to issue executive orders that could push their proposals forward without votes in the House and Senate.” Due to intraparty ideological disputes, the Democrats have been unable to pass important bills and therefore have very few accomplishments to talk about when they face their constituents in November. Consequently, they want the President to bypass the Congress and impose their stalled agenda on the nation by fiat.
Even the Speaker of the House, who should be interested in protecting the constitutional prerogatives of Congress, made it clear that Biden should exceed his executive authority if the Democrats can’t get their agenda passed. On Friday, Speaker Pelosi (D-Calif.) said, “It’s very important for the executive to act if we cannot get legislative action immediately.” Pelosi went on to justify this claim with an egregious false analogy: “The Emancipation Proclamation was an executive order.” Never mind that Lincoln issued that EO pursuant to his war powers — it applied only to the states in rebellion — and that the nation faces no such emergency now. He certainly didn’t issue it simply because his party couldn’t pass its pet bills.
And that’s really what all this nonsense about executive orders is about. The Democratic leadership, with tiny congressional majorities in Congress, tried to fundamentally transform the republic in ways the voters don’t support and that would do real violence to the Constitution. Biden and most other congressional Democrats ran as moderates, but immediately lurched leftward after they were sworn in. Thus, they not only failed to get Republican support for most of their legislation, they were unable to secure support from fellow Democrats on crucial votes. Instead of compromising with Republicans they want Biden to do another “workaround.” As Caucus Vice Chair Pete Aguilar (D-Calif.) put it:
Legislating is always our preferred strategy, from the speaker to the majority leader to everyone behind me.” We know that there is no substitute to developing laws that deliver benefits to our communities. But we also need partners on the other side of the aisle who are willing to do that, and time and time again, Republicans have not supported taking action, whether it’s delivering voting rights, or ensuring that people who call — there is no other country that is their home except the United States, to ensure that they’re protected.
Rep. Aguilar is evidently unaware of the separation of powers doctrine. If he wants a law passed, legislation isn’t a matter “personal preference.” Article I, Section 1 of the Constitution is unambiguous on this point: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.” The “voting rights” legislation to which Rep. Aguilar refers is a good example of how this works. If a bill called “The Freedom to Vote Act” is introduced by that member but fails to pass both houses of Congress, the President can’t ignore that failure and sign it into law with an executive order. The President doesn’t possess the power to issue imperial decrees.
Some executive orders are legitimate, of course, if used to execute a power the President already possesses. Majority Whip James E. Clyburn (D-S.C.) recently provided an example, “The armed services were integrated by Harry Truman by executive order.” That EO was legitimate because, as commander-in-chief of our armed forces, the order was issued pursuant to powers vested in the President by the Constitution. A president cannot issue executive orders that infringe on powers granted to other branches of government. Yet many Democrats are pleading with Biden for more leftist executive orders. Moderate Democrats, such as Douglas E. Schoen, are advising the party to move toward the center:
The party needs to show voters that they are focused on solving problems and addressing quality-of-life issues and that they reject the progressive left’s embrace of big government spending and identity politics. Indeed, a majority of voters (54 percent) — including 56 percent of independents — explicitly say that they want Biden and Democrats to move closer to the center and embrace more moderate policies … there is a clear sense among the 2022 electorate that the state of the country has deteriorated since Biden became president.
The Democrats should indeed be alarmed about the upcoming midterms. But they are hopelessly disconnected from the real concerns of the voters. Americans are less worried about police reform than the price they pay at the pump. They are less worried about tall tales of voter suppression than the cost of fruit and vegetables. They are less worried about asylum for illegal immigrants than the education their children get in the public school system. Convincing President Biden to promulgate a new crop of constitutionally dubious executive orders isn’t going to impress the voters. They are not going to regard edicts from inside the Beltway as progress toward solving the very real problems they face every day.