Executive orders and rule by edict gets a court test
The Biden administration is fighting to keep the president’s executive order mandaring coronavirus vaccines, or frequent testing, for most of the nation’s private companies. The legal issues have divided along the usual pro- and anti-mandate lines.
But as the R Street Institute’s Marc Hyden writes, there’s another big issue that’s not getting nearly enough attention: how presidents increasingly rely on executive orders to govern.
For years, presidents have increasingly ruled by unilateral edicts—known as executive orders—rather than within our traditional constitutional framework. This is not a new concept. Presidents George W. Bush averaged 36 executive orders a year, Barack Obama 35, Donald J. Trump 55, and at this rate, Joe Biden is on track to average 88.
Many executive orders are innocuous, but too often, they are issued in lieu of legislative action because Congress chooses not to act for whatever reason. In response, administrations tend to scour the federal code to concoct a legal basis—however specious—for issuing executive orders. These overstep their bounds sometimes, which brings us to the OSHA mandate.
Which has generated state-level pushback:
In the meantime, 27 states, including Georgia, have filed suits to halt Biden’s directive. Time will tell how the courts will rule on President Biden’s executive order, but it seems that the 5th Circuit can read between the lines. In their opinion, “The Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.”
That is not OSHA’s role, but we would not even be having this discussion if the executive branch weren’t so doggedly married to the idea of ruling by edict and ordering agencies to enforce rules outside of their jurisdiction.
Edicts have no place in a republic. But decades of expanding executive power have made edicts the norm. A fully functioning legislative branch would flex its oversight powers to prevent, or at least curb, such executive overreach. Maybe that will happen after 2022.