‘Pen-And-Phone’ Constitutionalism Causes Concerns

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‘Pen-And-Phone’ Constitutionalism Causes Concerns

Published: Saturday, August 15th, 2020 @ 9:55 am
By: John Locke Foundation ( More Entries )

Publisher's note: The author of this post is Mitch Kokai for the John Locke Foundation.

Yuval Levin and Adam White explain at National Review Online why they worry about the return of a particular presidential approach once touted by Barack Obama.

On Saturday, President Trump put his name to four executive actions — three presidential memoranda and one executive order — intended to offer some relief to Americans dealing with the consequences of the COVID-19 pandemic. The premise of these actions, made explicit in the text of each, was that Congress had failed to act and now the chief executive has to step in. It is a premise fundamentally at odds with the logic of our constitutional order, and it points to a number of dangerous dysfunctions in the American system of government that are now thoroughly bipartisan.

As a matter of substantive policy action, there is less to these four actions than might meet the eye. ...

... As real relief, these measures are precarious and weak. But as exertions of executive authority, the latter two memoranda in particular are constitutionally dangerous. That is not to say that a judge would necessarily throw them out; they are substantively weak because they are written to avoid expressly violating any law. And if the Constitution is just a law as well, then there are surely justifications that the administration's lawyers could offer for both memos that might satisfy the federal courts.

But if the Constitution is more than a law, if it establishes a system of government with a particular character, then there could hardly be any question that a presidential action explicitly setting out to change federal policy regarding both spending and taxing, and to do so precisely because Congress has declined to take these steps, violates that character.

The president did not even attempt to deny that he was stepping into Congress's terrain and taking actions that are in essence legislative.

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