‘Pen-And-Phone’ Constitutionalism Causes Concerns | Beaufort County Now | 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. | john locke foundation, constitutionalism, pen-and-phone, donald trump, executive actions, august 11, 2020

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‘Pen-And-Phone’ Constitutionalism Causes Concerns

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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