A couple of years ago, after President Trump backed out of the Paris Climate Treaty and the Iran Nuclear Deal, I wrote a column for “Historically Speaking,” justifying his actions because those deals had been made by executive orders so could legally be overturned by executive order. At the same time, I argued that modern executive orders such as these went beyond the authority of the president and should be handled by Congress. If you want more proof of the folly of executive orders, on the first day of President Biden’s term, he signed into effect 15 new executive orders, one of which was to reenter the Paris Climate Deal. As with my first article, I am not arguing that we should or should not join with the climate agreement. My argument is about the process. The very fact that Obama can join it, Trump pull us out, then Biden rejoin – all done by one man and the stroke of his pen – goes beyond the scope of power the founders envisioned.
Last time, I cited the Constitution as an example to show how only Congress is authorized to make laws and approve of all treaties. The Paris Accords and the Iran deal are both treaties with foreign nations and hence should fall under the powers of Congress, yet they were not. There is nowhere in the Constitution that explicitly gives presidents power of executive orders; instead, the power is implied from Article II.
Not all executive orders are the same; some are perfectly legitimate. The Supreme Court has said a president can use the power if given authority by a clause in the Constitution or if Congress delegates it. All presidents have issued orders, starting with George Washington. Washington’s first order was that all department heads report to him what was happening in their departments. As head of the Executive Branch as prescribed by the Constitution, Washington had the right to request reports from his departments.
As Commander and Chief, presidents can make decisions about the military. Lincoln’s Emancipation Proclamation was an executive order. It was done as a military order to hurt the South by taking away their work force. Agree with the idea or not, Biden’s use of an executive order to allow transgenders into the military is legitimate. It falls under his military authority.
Another legitimate use of executive orders is in the enforcement of laws, another duty prescribed to the president. After the Brown v. Board of Education ruling, President Eisenhower issued an order to desegregate schools.
Finally, though not in the Constitution, allowing presidents to act in time of emergency seems legitimate, but only for the duration of the crisis. FDR, who guided the nation through two of the hardest episodes in our history – the Great Depression and WWII, used orders to create the Works Progress Administration and later the Manhattan Project. Under this thinking, any of Biden’s executive orders issued to stop COVID have some validity.
The second part of the Supreme Court’s ruling of when Congress delegates is more problematic. Who’s at fault is too long for this article but starting in the Progressive Age and expanded during FDR and the Cold War, presidents little by little have taken away (and Congress has let them) the primary task of Congress which is to make laws. Whereas orders were meant for executing presidential duties, many are now used to bypass Congress to legislate. Again, I am not arguing for or against any of Biden’s orders, but his executive orders on immigration and transgendered athletes are establishing law and should be dealt with by Congress. It has been argued to me that presidents need to act on these issues because either Congress refuses to or moves too slowly. While I understand, the Constitution does not grant the president legislative powers in cases where the Congress is too slow, refuses to act, or cannot get enough votes to pass its legislation.
When the Founders gathered in Pennsylvania to create our governing document, their most difficult task was creating an executive branch. The other two branches were easy by comparison, but America had just broken away from a monarch and was not in a hurry to recreate a new one. In fact, the first national government, The Articles of Confederation, did not even have an executive branch.
When creating the Executive Branch, the man who inspired the Founders’ thinking was the French philosopher Montesquieu, who argued the idea of “trias politica” or “separation of powers.” The Founders were scared of creating a strong president, but what Montesquieu argued, and the Founders understood, was that in order to keep the people safe from a tyrannical government the Executive Branch had to be as powerful as the Legislative and Judicial Branches. If not, the Legislative Branch had the power to become tyrannical. Therefore, the Executive Branch had to be strong.
However, none of the Founders ever imagined what the President has become in the 21st Century. No matter if you support or condemn Biden’s orders, which he now holds the record for in his first days, the Founders never envisioned so much raw power in the hands of just one person. It goes against everything they feared and everything Montesquieu taught. Biden needs to be careful. For a man who claimed Trump was a tyrant, Biden has more than doubled the number of Trump’s executive orders for the same amount of time in office.
Dr. James Finck is an Associate Professor of History at the University of Science and Arts of Oklahoma in Chickasha. He is Chair of the Oklahoma Civil War Symposium. Follow Historically Speaking at www.Historicallyspeaking.blog.
A ‘Rush to Judgement’ of Lord Fairfax in community college renaming effort?
After 50 years of orogenic calm, suddenly the directors of Lord Fairfax Community College (LFCC) are trying to change the college name, and the school’s public relations cadre has been in full-blown smackdown and smearing of the deceased namesake, Lord Fairfax the 6th.
We know Mr. Fairfax was a slave owner, but let’s look at the other things they have been saying about him.
The former college president said he was a “very minor historical figure”. Yet, Mr. Fairfax was responsible for the settling of over 5 million acres locally! Like it or not, he was the face of local colonial rule, and he helped-along George Washington, who grew-up to protest the colonial slave trade and lead the army which ended that rule.
They said Fairfax was an out-of-touch, stingy aristocrat, and “never had to work”. However, he donated land and performed civic duties, serving as a Frederick County Justice of the Peace and County Lieutenant. Historian Bishop Meade wrote, “It deserves to be mentioned of Lord Fairfax, that, titled as he was, and rich, he never failed to perform his duty as a citizen and neighbor”.
While, yes, through the colonial system, he came unto his land holdings, he did not sit in a recliner playing Xbox. That land had to be surveyed, appropriated and governed, by foot and horseback. Fairfax eschewed English castle life and settled in something visually similar to a horse barn, in the then-wilderness of White Post, Virginia.
Regarding privilege, it is only fair to note that the annual salary for the head of the Virginia Community College system is an aristocratic $481,045!
Moreover, LFCC’s website states: “There are historical records indicating he also engaged in long-term sexual abuse of enslaved women”. One member of the re-naming board said he “partook in a pay-for-rape scenario”. Where is the proof for these outrageous statements?
Similar claims are circulating on the Internet and likely derive from Stewart Brown’s biography on Lord Fairfax, published in 1965, a book referenced by the Board’s re-naming committee. Let’s take a closer look at it.
In the appendix, Brown said he had in-hand a receipt written by Fairfax’s clerk, to wit: “February 27, 1777: Received of Curtis Corley ten shillings on the Lord’s ship account, for bring a negro wench to bed. Cary Balengar”. Let’s assume that is an exact quote from receipt, because accuracy matters here.
Elsewhere in his book, Brown altered the included phrase into, “bedding down a negro wench”, and remarked that this meant Fairfax was paying for sex. He further speculated that this was evidence on a rumor that Fairfax had children by numerous slave women, and that at the age of 83, was thus “sufficiently virile” not to be near death. However, Brown gave no foundation for the rumor or his opinion.
Yet, the Collins Dictionary says “to be brought to bed” is an archaic British English expression meaning “childbirth”. Given that, does it make better sense that this was simply a receipt for delivering a baby, as others have already suggested?
Before we neuter and vandalize Fairfax’s name, let’s do OUR homework.
Rockland, Warren County, Virginia
Dave Stegmaier is silencing Shawnee
I recently posted some comments on Dave Stegmaier’s Facebook campaign page. It was respectfully written, and I expected that same respect in return. Instead, my questions were left unanswered and then deleted. I was then blocked from commenting altogether. In fact, he also deleted comments made by others questioning his posts. Why?
My comments were related to the details involving the radio system and the county’s RFP. Did we select a system that is out of scope from what we requested? I also commented on Mr. Stegmaier’s post regarding how he voted April 14th and shared a link for others to check for themselves. If his post was honest, why did he delete the link I provided that would prove it?
I am a Frederick County native. I attended Bass-Hoover, Aylor and graduated from James Wood. As a lifelong resident, Mr. Stegmaier’s treatment of my comments and those of the others he deleted did not sit well with me. We have a right to be heard and acknowledged.
Mr. Stegmaier accused his opponent, Josh Ludwig, of playing politics in one of his posts. Who’s really playing political games?
We need a representative who cares enough about our concerns to offer an answer, not silence and ignore us. Someone who will keep their promises made while running and vote accordingly. Dave is not doing that, and we need someone who will. I believe Josh Ludwig is that person. The clear choice for a true conservative voice.
Frederick County, Virginia
Here are some examples of myself and others being silenced in Shawnee by Mr. Stegmaier, as these comments have since been removed:
One county citizen weighs in on municipal ‘Sludge War’
In regard to the “Sludge War” and most specifically the Town of Front Royal’s Mayor Chris Holloway, the people should consider this carefully: Blackmail is wrong. It is immoral and unethical. It has no place in government. For hurting this entire community by calling on debts and refusing to have a working relationship with the County, that could be considered extortion.
If you get what I’m saying and live in the Town, please consider running for Town Council or Mayor. As it turns out, Mayor Holloway has been found wanting. True leaders lead by example and what a total sham to have a Mayor who sets a precedent for malicious, retaliatory antics consistently used by angry bullies lacking in critical thought.
Front Royal needs YOU!
An Appeal to Heaven
Prayer has always been powerfully employed in our country for guidance, protection and strength, from the earliest time when we were only loosely united and isolated colonies. The Pilgrims at Plymouth relied on prayer during their first and gloomiest winter. George Washington “appealed to heaven,” when his Continental Army crossed the icy Delaware River on the night of December 25, 1776, in a logistically challenging and dangerous operation. Benjamin Franklin called for prayer during the Constitutional Convention in July, 1787. Tempers flared and interests clashed as the delegates sought their respective goals. It was at this time Franklin offered his famous appeal for harmony and reconciliation, an appeal for God’s intervention.
Later in October, 1789, President Washington would say at his Thanksgiving proclamation, “It is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits and humbly to implore His protection and favor.” Colonials believed their newly established nations many freedoms were a direct gift from God.
President Abraham Lincoln was also aware of the benefits of prayer. It was his belief that, “it is the duty of nations as well as men, to owe their dependence upon the overruling power of God.” At the most tumultuous period in his presidency, he found the dire need for supplication. Before the battle of Gettysburg, he turned to God in prayer. “I went to my room one day and I locked the door and got down on my knees before Almighty God and prayed to him mightily for victory at Gettysburg.”
Today the need for continuous and relentless prayer is greater than ever.
Our nation again faces spiritual warfare on all fronts pushing our citizens into drug abuse, gambling debt, bankruptcy and suicide, along with an epidemic of dysfunctional families, violence and dissension. Our leaders must bow their heads in prayer just as the great people did in the past to avoid plunging our nation into a certified death spiral. God has provided us with everything we need to win the spiritual confrontations, accentuating the awareness to know it, believe it and act upon it. It’s through prayer that we recognize and wield the weapons and wear the spiritual armor as described in Ephesians 6.
We must ask the Lord to bless our political and corporate trailblazers with wisdom and protection and to give us the fortitude to overcome the challenges that lay ahead. We pray that corporate leaders have insight to follow in God’s ways toward peace, freedom and the pursuit of happiness. We pray for our national and local elected officials to heed God’s wisdom in their legislation, judgments and activities. We pray that each of us does our best in our efforts as we are striving to do God’s will.
Stephens City, Virginia
Couple marries again… for the first time
When California couple Ann Shulman and Steve Colwell needed a copy of their marriage license for a business transaction recently, they turned to the file cabinet where they kept their important documents–but it wasn’t amid their birth certificates or passports. No matter. Shulman sent off a letter to the state’s Vital Record Office requesting a copy, and expected its arrival in a matter of weeks.
What she received instead came as a shock: a certified copy of the pubic record of marriages in California dating from 1905—with no record of their May 5, 1991 wedding. There appeared to be no such union in Marin County or in the entire sunny state of California.
Which meant… they weren’t legally married? How to tell Colwell’s 93-year-old Catholic mother that they had been living in sin all these years? Or their two sons, James and Daniel, 23 and 21 respectively, that they were illegitimate?
In the end they decided to do the right thing: to get married again, for the first time—thirty years later to the day. This time the nuptials took place in Front Royal, VA, near Browntown, where Shulman’s family has owned a farm for 56 years. The bride wore her original wedding gown with cowboy boots and a ten-gallon hat. They planned to honeymoon in Browntown.
In the pantheon of great American presidents, a few are always at the top. Lincoln usually comes to mind, then Washington, and Jefferson. In the 20th century, the president who makes every list is Franklin Roosevelt. What makes FDR interesting is that, unlike Lincoln, FDR was beloved in his own time. Because of the way he handled the Depression, it was not uncommon to see FDR’s picture hanging in homes in a place of honor. Don’t get me wrong. Some people had issues with this president, but most appreciated his efforts to relieve the nation’s pains. Yet there was one episode where he did receive rebuke from both sides of the political aisle and the population at large and that was his effort to pack the Supreme Court.
Here was the situation. When FDR took over the nation in 1932, we were in the midst of the greatest depression in our history. The president wanted to tackle as many problems as he could in his first 100 days (starting a precedent that has lasted till today). Many of his proposals became part of his alphabet programs like the WPA, AAA, TVA, and the CCC. One of his first and, it turned out, most controversial was the National Recovery Administration. The NRA, in an effort to reduce competition, created codes that did things like set prices. The problem for FDR was that in 1935 the Supreme Court ruled the NRA unconstitutional.
FDR, worried that more of his New Deal plans would be rejected by the courts, came up with a plan to get the courts on his side. He proposed adding a new judge for every member of the Court over the age of 70, which meant adding six new justices to the bench, enough to turn the tide of the court in his favor. He claimed the court was overworked and suggested the new justices could relieve some pressure. The problem was that most Americans and both sides of Congress saw it for what it really was, a power grab. Even though the Democrats held the majority in both houses of Congress, a vote for FDR’s measure failed. The failure was partly because one judge had begun voting for FDR’s programs, but also because the courts were seen as sacred and people feared FDR’s plan could destroy the separation of powers.
Constitutionally, FDR had the power to propose this court-packing scheme. As with many things, the Constitution is silent on the number of judges to the high court, simply saying in Article 3, Section 1: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
Congress passed the Judiciary Act of 1789, which set up the Court with six judges. John Adams dropped it down to five, but then Jefferson brought it back to six and then later, when the Federalist judges did not die fast enough, he moved it to seven. Later Jackson added two more as the population grew and more judicial districts were needed. The Civil War saw some jumbling as Lincoln moved the number to ten, only to be reduced to seven by Andrew Johnson. Finally, under Grant the number was put to nine and since 1869 it has remained that way.
Now, in 2021 President Joe Biden is considering legislation to increase the number of justices for the first time since FDR. The president’s reasoning is that the Republicans have gained an unfair advantage with Trump’s three new justices. Democrats are still understandably upset at Trump’s nomination of Amy Coney Barrett after Republicans blocked Obama’s nominee, Merrick Garland, in his last year. However, though understandable, what the Republicans did was legal, if not morally, correct. What Biden is trying to do is no different than FDR, who wanted to make sure the courts agreed with him. If Clinton had won in 2016 and liberal-leaning judges controlled the court, there would be no call for equality in the court coming from Democratic camps.
I normally try to explain history, not solutions, but this is one area where I believe the Founders failed. Not that their system failed, but they could never have foreseen how partisan we have become.
Judges are supposed to follow the law, not a party. I would propose a new amendment to the Constitution that goes back to the original number, six, or maybe eight. With an even number, the new law would allow Republicans to choose four and the Democrats to choose four. If a judge dies, then the party of that judge gets to choose the new one. I know this sounds crazy, but with an even number justices will have to compromise over the law and not political leanings.
If Biden decided to, he might be able to pull off increasing the number of judges. Historically Speaking, however, he would need to be extremely careful. FDR won his second election by carrying all but two states before he tried something so daring. Biden does not have that same type of support. FDR, who was beloved, was seen as going for a power grab. Biden, who is nowhere nearly as loved, may not be able to survive the hit.
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.