On his first day as president, Joe Biden issued more executive orders than had Donald Trump, Barack Obama, and George W. Bush on their first days — combined.
Anthony Fauci has regrets.
In an interview Monday, the director of the National Institute of Allergy and Infectious Diseases said that if he could go back and change anything about the government's handling of the COVID-19 pandemic, it would be to press for "much, much more stringent restrictions" than the ones that were imposed in the spring of 2020.
More stringent. More than the abrupt shutdown of the US economy, which destroyed 21 million jobs in a matter of weeks and drove the unemployment rate to nearly 15 percent. More than the unprecedented closure of every public school in the country, which inflicted a staggering degree of learning loss and emotional turmoil on American children. More than the sweeping shelter-in-place limitations, which did little to reduce the spread of COVID but severely exacerbated harms ranging from domestic violence to mental health to untreated medical conditions. More than the top-down orders — issued with no chance for public or legislative input — that unilaterally prevented Americans from traveling, attending church, holding weddings, or comforting the dying.
The response to the pandemic was an extraordinary diminution of Americans' freedom to make choices for themselves and a corresponding enlargement of the power of government officials to rule by decree. And Fauci is chagrined that it didn't go far enough.
To be fair, he is hardly alone in thinking this way. When it comes to COVID or almost any other significant public concern, the authoritarian impulse — a preference for achieving policy goals through coercion rather than the untidy give-and-take of democratic negotiation — now seems to be the default.
As a candidate in 2020, Joe Biden rightly insisted that political legitimacy is acquired through compromise and patience. He rebuked progressives who wanted him to enact their wish list singlehandedly. "You can't [govern] by executive order unless you're a dictator," he said before the election. "We're a democracy; we need consensus."
Yet once in the White House, Biden began issuing edicts with record-busting frequency. He signed more executive decrees on his first day as president than Donald Trump, Barack Obama, and George W. Bush did on their first days — combined. Within a week of his inauguration, even The New York Times editorial board was imploring him to "Ease Up on the Executive Actions, Joe." Yet since then he has been generating such orders at a faster clip than any of his six immediate predecessors.
No longer does Biden stress the importance of working through the legislative branch. "Since Congress is not acting on the climate emergency, I will," he tweeted recently. "In the coming weeks my Administration will begin to announce executive actions to combat this emergency."
Far from bristling at the president's encroachment into the purview of the legislative branch, Democrats in Congress are encouraging it. "It's very important for the executive to act if we cannot get legislative action immediately," House Speaker Nancy Pelosi said in March. The Congressional Progressive Caucus, which comprises 98 House members, prepared a list of executive order recommendations, urging Biden to unilaterally lower health costs, overhaul policing, and cancel all federal student loan debt, among other actions. Representative James Clyburn of South Carolina, the majority whip, noted that the Emancipation Proclamation was an executive order and pressed Biden to be more like Abraham Lincoln.
There is a vast difference between orders issued by a president who is performing his role as commander-in-chief of the nation's armed forces and those issued by a president seeking an end run around Congress. The Constitution expects presidents to act decisively on matters of war, peace, and diplomacy and grants them the widest possible latitude in the conduct of foreign and military affairs. The Constitution also specifies that presidents "shall take Care that the Laws be faithfully executed," which gives the White House considerable scope for direct action in areas where the law is clear but is not being upheld or where Congress has explicitly authorized the president to act.
A classic example is President Eisenhower's executive order to federalize the Arkansas National Guard and enforce desegregation in Little Rock. Another was President Johnson's 1965 order prohibiting federal contractors from discriminating "on the basis of race, color, religion, sex, or national origin." Executive orders have been appropriately issued for numerous purposes — to recognize foreign governments, to bring (or waive) criminal indictments, to deploy or withdraw troops, to grant pardons, to designate federal lands as national monuments, to proclaim national holidays, or to set tariffs.
But the Constitution does not permit presidents to unilaterally order a policy change that neither the Constitution nor Congress has sanctioned. A notorious instance was President Truman's 1952 order nationalizing the US steel industry — a dictatorial act for which there was absolutely no legal basis. Another was FDR's executive order to relocate 100,000 Japanese Americans to government-run internment camps. More recent was Biden's nationwide moratorium on evictions, an order he issued even after acknowledging that it had no legal basis.
Sometimes the courts shoot down unlawful executive orders (as with Truman's steel takeover and Biden's moratorium); sometimes they fail to do so (as with FDR's internment camps). Either way, the illiberal desire to formulate public policies through authoritarian means keeps growing stronger. More than ever, it needs resisting.
This is hardly a problem only among Democrats. The Trump White House repeatedly resorted to executive orders to bypass or undermine Capitol Hill. In 2019, for example, after Congress refused to fund a massive wall on the Mexican border, Trump declared that a national emergency empowered him to spend the money and build one regardless. "We're going to confront the national security crisis on our southern border, and we're going to do it one way or the other," he announced.
The Supreme Court shot down President Truman's 1952 order nationalizing the US steel industry — a dictatorial act for which there was absolutely no legal basis.
And while many on the progressive left have embraced a by-any-means-necessary approach to getting their way on climate change, abortion, or the pandemic, a growing movement on the right is equally enamored of top-down control. Would-be authoritarians promoting what they describe as "common-good conservatism" want to use the power of government to advance their right-wing vision. In a widely noted Atlantic essay in 2020, Harvard Law professor Adrian Vermeule called for a "robust" legal approach based on the belief that government must "direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate."
The authoritarian impulse exists in every society. There are always those who would rather resort to autocratic means to accomplish desired ends. Today, fewer and fewer leaders champion the necessity of debate, persuasion, and finding common ground. More and more find coercion more appealing than cooperation. When Benjamin Franklin was asked in 1787 what the delegates in Independence Hall had concocted, he memorably replied: "A republic, if you can keep it." We have managed to keep it for two and a quarter centuries, but the prognosis isn't encouraging.
(Jeff Jacoby is a columnist for The Boston Globe).
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