Earlier this morning the news broke that the President of the United States was interested in removing a protection of the 14th Amendment to the Constitution of the United States of America with an executive order. Setting aside the moral, political, and ethical implications fueling this purposed change for a moment; let’s examine the legality of the move.
In the United States of America, the Constitution is the law of the land. If an issue is not mentioned in the Constitution, it is fair game for federal and state lawmakers to establish policy as they see fit. However, if an issue is mentioned in the Constitution (unless otherwise amended), it is absolute. If any other law contradicts the U.S. Constitution, the other law loses.
Executive Orders are a constitutionally implied power of the President. No actual “Executive Order” provision exists in the constitution. However, in practice, they give the president the power to affect or make policy where not constitutionally prohibited.
Executive Orders are usually effective immediately and carry the full weight of law when enacted. But, they are subject to judicial review can be overturned. Moreover, the legislature can enact laws that invalidate them. The issue is that either of these remedies takes time, time in which the executive order is often still in effect.
Separation of Powers
The American federal government was designed to have three branches that are there to check and balance one another’s power. The legislature makes the laws, the judiciary interprets the laws, the executive enforces the laws.
Needless to say, things have not always worked out the way they were intended. There’s a reason that the president is considered the most powerful person on the planet. If one were to actually scale the power of the branches themselves, the legislature would likely be the most powerful, being able to make and change laws. However, that power is dispersed over hundreds of people who typically have difficulty deciding what color the sky is.
The power of the executive branch is consolidated into one person. That person can act more or less on a whim with only delayed repercussion.
Where We Are Today
If you asked the question, “Can the president enact an Executive Order that contradicts the Constitution?” The normal answer would be a flat “No.” Normally, that would be the end of it.
If you’ve been paying any attention at all these last few years, you’ve probably noticed that normal has gone out the window.
The government wasn’t really designed with political parties in mind. In fact, George Washington warned against them as he saw them being birthed in the young republic. Unfortunately, his warnings were not headed and here we are.
When one party controls multiple branches of government, the idea of checks and balances is lessened at best and turns to aiding and abetting at worst. We are hovering around the latter at the moment. Blatant breaches of protocol go either unpunished or flat out ignored by a legislature that supports its party over its country. It has even reached the judiciary where politics is being played to stack the Supreme Court in one party’s favor for political ends.
To be clear, both parties are capable and guilty of these practices, it is just the one in power currently that is of the most imminent issue.
This is a more serious issue than supporters of the current administration might realize. If this precedent is set, it kinda upends constitutional law as we know it. Legally, this Executive Order is unconstitutional and should not go into effect. However, this administration has gotten their way several times before when they legally probably shouldn’t have. If the president is allowed to overrule the constitution, the supreme law of the land, that effectively makes the president the supreme law of the land. When one person becomes the supreme law of the land it’s called a dictatorship.
Or maybe the president was just thinking out loud…
Only time will tell.
By the way, there’s an election next week. Just saying…