Ryan D. Doerfler on the Anti-Novelty Doctrine and Executive Power

Executive Orders and Smart Lawyers Won’t Save Us

It’s news to no one that Congress is broken. Owing to partisan deadlock and super-majoritarian rules — including the legislative filibuster and equal apportionment of the Senate — our national legislature is largely incapable of addressing national (let alone international) problems. From immigration to climate to guns, the odds of comprehensive legislation are basically zero. And while one can hope for modest reforms, even there, the emphasis is on hope.

Given this state of dysfunction, it’s natural to look for alternatives. It should come as no surprise, then, that we get appeals to the states to take the lead on energy efficiency, and to private employers to help reduce income inequality. Most loudly, though, we hear pleas to the most prominent actor within our political system, the president, to “get something done” on this issue or that. As a result, much of the story of the contemporary presidency has consisted of attempts to implement national policies in Congress’s stead, whether in the form of President Obama’s deferred action programs or President Trump’s border wall (immigration), Obama’s Clean Power Plan (climate), or various proposed and actual executive orders by Presidents Obama and Trump in response to mass shootings (guns).

Support for executive action varies, predictably, by partisan affiliation and current White House occupant. And so, with Democrats perhaps poised to retake the presidency, we are experiencing a new, predictable wave of executive-action enthusiasm among liberals and the Left. Perhaps the best example, both in terms of quality and typicality of sentiment, is the recent American Prospect series “The Day One Agenda.” In a series of well-researched, well-argued articles, contributors to the series set out an ambitious set of policy reforms, ranging from student debt cancellation to carbon reduction to postal banking, all of which could be brought about, the contributors insist, through the exercise of existing statutory authority. In other words, even if Congress remains inert, a progressive president could, the series argues, bring about much, if not all, of the change that we need.

The inclination for projects like this makes sense. The nation (and the world) faces enormous problems that Congress is unwilling or unable to solve. Surely some other state actor must be able to pick up the slack. The problem is, they can’t — or at least not at anywhere near the necessary scale. Worse still, by pretending otherwise, we are putting off the hard work of fixing our dysfunctional legislature, which is to say our broken democracy.

Read more at Jacobin