All Americans should be concerned about President Biden’s recent executive order on gun control. Try to forget for a moment, if you can, whether you agree with Biden or not and try instead to focus on the procedure. Biden is falling back on the two justifications that other presidents have used to skirt the Constitution, that Congress is not doing its job and that he is only following the will of the American people. However, is that statement true? In some ways, yes. But, historically speaking, presidents were never supposed to represent the people’s will and sometimes non-action is action.
First, let’s look at the idea of representation. Does the president represent the will of the people? The answer is no. That was never the Founders’ intention when creating the Constitution. Biden did win the presidency, but he only won the popular vote by 51.3%. In other words, he really only represents about half of the ideas of Americans. Even if the percentage was much higher, he represents the nation as a whole, not the people individually. That is the job of Congress. Congress is made up of both parties proportional to the political ideologies of the people. Congress represents the will of the people. Even if your representative is from a different party, congressmen represent all Americans virtually, so your ideas are represented – unlike the president who only represents his party.
This is exactly how the Founders envisioned it, but without the parties. The Constitution was written so that the president did not represent the will of the people. If the Founders had wanted a popular vote to choose the president, they could have done so. Instead electors are chosen to vote for the president. Although the people elect the electors today, that was not the case when the nation first started. The point of the Electoral College is to actually separate the people from the president. Congress is where there is a direct vote, at first only in the House, but today in both houses of Congress. When a president makes an executive order, that goes against Congress. In fact, he is actually fighting the will of the people, not representing it.
Secondly, should the president act if Congress refuses to do so? The answer is no. The Constitution says, “All legislative Powers herein granted shall be vested in a Congress of the United States.” No second clause stipulates, “or with the president in times of inaction or if things do not go the president’s way.” This is American Government 101. Only Congress can make laws.
Thirdly, sometimes inaction is action. The president assumes that Congress is not doing its job if Congress does not pass the laws that he desires. All presidents who make this claim assume action is agreeing with them. In today’s particular case about gun control, however, Congress is not acting because it can’t. Though most Democrats support gun reforms, not all Democrats do. In other words, Congress is not making new gun restrictions because it does not have the votes in the Senate to pass any legislation. The Democrats would need every vote, plus the vice-president to pass with a simple majority, let alone ten Republicans votes to pass the filibuster. The Democrats have neither. There are some moderate Democratic senators who oppose the current gun control laws. In this case, the action is the Senate saying that it does not support current gun law proposals, which is different from the Senate doing nothing.
If the Congress, which represents the will of the people, decided against new laws and the president used an executive order to circumvent Congress to pass laws anyway, that makes the president a tyrant. The Founders were scared of a tyrannical president when they wrote our founding document, hence they put in checks and balances. Bypassing Congress goes against the very fabric of the Constitution.
Now that we have addressed procedure, let’s quickly address the content. We need some common-sense gun laws. The mass shootings need to stop. However, the fact that one man and his pen can make such an important decision by himself, and against the wishes of Congress, is the reason we have the Second Amendment to begin with. It was an armed citizenry that revolted against a tyrant in 1776. The Founders wanted Americans to have that right if needed again.
Dr. James Finck is a Professor of History at the University of Science and Arts of Oklahoma and Chair of the Oklahoma Civil War Symposium. To receive daily historical posts, follow Historically Speaking at Historicallyspeaking.blog or on Facebook.
One thought on “Executive Orders-Part III”
Excellent article. Your three main points are the core of the argument against Executive Orders. From a strictly Constitutional perspective, it is difficult to justify any EO’s.