Ever since the COVID-19 entry into every aspect of American life, there has been increasing concern over the authority of individual governors to issue all manner of executive orders ostensibly intended to promote "public safety.”
These mandates ordered residents to wear face masks, stay at home, denied assembly to worship attendance, and denied graduation ceremonies. Since the entire litany of edicts have blatantly violated our First Amendment rights, questions have arisen.
Generally, governors have authority to issue executive orders by provisions in their state constitutions or by state legislative actions. Taking the State of Washington Attorney General’s ruling in 1991 as a paradigm for all states, we can see this articulated and outlined.
“The legislative authority of the State of Washington is vested in the Legislature. In absence of a statute or constitutional provision that serves as a source of authority authorizing the Governor to act, the Governor cannot create obligations, responsibilities, conditions or processes having the force and effect of law by the issuance of an executive order.”
In most cases, governors can wrest the authority to issue such directives under a "State of Emergency” or “State of Public Health.” Thus, the regulations to “protect” citizens from the dangers of COVID-19 have come from this authority. There have been challenges to some of these mandates in state supreme courts with mixed results.
The Founders established a government with three branches providing a system of checks-and-balances between them. The executive branch enforces the laws, the legislative branch writes the laws, and the judicial branch interprets the laws.
Their main concern was with an executive branch becoming too powerful and too unwieldy, citing the “establishment of an absolute tyranny.” Unchecked executive orders can be the harbingers to such “absolute tyranny.”
On the federal level there is no constitutional provision specifically citing either the use of or the prohibition of executive orders. Article II, Section 1, Clause 1 of the Constitution simply states, "The executive Power shall be vested in a President of the United States of America."
To be clear, an executive order at the federal level is a mandate from the President to manage operations of the federal government.
Several cases heard by the U.S. Supreme Court have held that all executive orders from the President must derive their authority either from specific stipulations in the Constitution or by congressional powers delegated to the executive branch.
In an attempt to reign in the possible abuses of executive orders, the Administrative Procedure Act (APA) was established in 1946. It applies to all agencies of the federal government and provides the general procedures for various types of rulemaking.
It would be concerning if a president or governor could use executive orders to create any sort of regulation to suit a particular whim or preference without regard to legal precedent or authority. The Founders must have been thinking of their experiences with King George.
Complain as we might about all the “recommendations” by the medical researchers, it has been the governors and large city mayors who have been draconian in their quests to control their populations.
Governors in Michigan, Wisconsin, California, Illinois, New Jersey, New York, Maryland, Virginia, Pennsylvania, and Connecticut have been among the most active in the exercise of their newfound power through executive orders. With it, they have ignored our basic First Amendment rights, our right to due process, and our rights to privacy.
In the process, executive orders have inhibited or suspended basic liberties that the U.S. Constitution and state constitutions guarantee. Without We the People being vigilant in our responsibilities as citizens, there is no push back on the invasion of our liberties through executive orders.
It is important that we as citizens continue to make our voices heard and stand up against executive overreach by either a president or a governor.
Convention of States provides that voice. We cannot remain silent.
