Live by the King, Die by the King!

The saying, “Live by the sword, die by the sword” comes from Matthew 26:52, in the New Testament. When a mob descended upon Jesus to take him to be tried and ultimately crucified, one of his disciples, believing he was serving his master well, drew his sword and cut off the ear of a mobber. In response, Jesus healed the man’s ear and taught, “put your sword in its place, for all who take the sword will perish by the sword.”

This teaching’s current application in US political life could be, “all who rule by executive order will perish by executive order.” Given the massive transfer of power in recent decades from the States to the National Government, and from the National Government to the Executive Branch, it is time to sound the warning, “Live by the King, Die by the King.”

As empty nesters, my wife Becky and I have been binge watching the Netflix series “The Crown.” At the death of a king, the next monarch’s reign is immediately announced with the refrain “The King is dead, long live the King,” or in the case of a young queen Elizabeth in 1952, “Long live the Queen.”

The United States broke with the concept of monarchy at our founding, having literally battled for a government “of the people, by the people and for the people.” To achieve the ends of self-government and safeguard against the tyranny of a monarchy, the Framers of the U.S. Constitution divided power among three separate governing branches and between two distinct spheres of government: the National Government and the States.  Should either sphere exceed its delegated power, the other would serve as a swift and powerful check to preserve the governing balance which protects our individual rights to our diverse pursuits of happiness while also maintaining a strong national union.

Arguing for New York’s ratification of the Constitution in 1788, Alexander Hamilton observed,

“This balance between the national and state governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the people. If one encroaches on their rights they will find a powerful protection in the other. Indeed, they will both be prevented from over passing their constitutional limits by a certain rivalship, which will ever subsist between them.” Alexander Hamilton, speech to the New York Ratifying Convention, 1788

On day one in the Oval Office, President Biden displayed a large stack of executive orders, which he signed that very day. As of this writing, he has signed more than 60 Executive Orders, Proclamations, Directives and Presidential Memoranda. The President is honoring his campaign pledge to to use executive and administrative actions to pursue his policy agenda over a wide range of substantive issues without regard to the balance of responsibilities and powers allocated in the Constitution.

How did we get to a place in the United States of America where presidents wield unilateral, monarchical power?

Presidential positioning on education policy holds several clues.  Despite having the undisputed record for executive orders at 3,721, President Franklin D. Roosevelt, as chairman of the United States Sesquicentennial Commission, recognized that since education was not mentioned in the Constitution “education is a matter reserved for the States.” (“The Story of the Constitution,” 1937).

Nevertheless, without any effort to amend to the Constitution, on October 17, 1979, President Carter signed the Department of Education Organization Act. Both Republican and Democratic presidents have been “ordering around” education in the States ever since.

Given that Congress has abdicated its duty to check the executive branch from brandishing legislative authority, when do States step up and exercise their constitutional responsibility to preserve the balance of governing powers? And, in all practicality, how do States do this?

According to the Brookings Institution, when “Trump took unprecedented steps to undermine and otherwise reshape domestic policy programs through executive action,” the authors note with approval, “the forces of federalism [emphasis added], especially state attorneys general, governors, and legislatures, have often undercut Trump’s executive initiatives and reduced their impact on who gets what from government in the healthcare, climate, and education arenas.” They describe unilateral actions of the Trump administration as “hostile takeovers,” and assert that “[u]nder our federalist system, states have authority over areas not specifically delegated in the Constitution to the U.S. government.”

Kenneth K. Wong, Professor of Education Policy at Brown University and one of the co-authors of the Brookings report, elaborates,

“…the forces of federalism matter [emphasis added]. Like his predecessors, Trump has faced the reality that states and localities shape who gets what, when and how in the education arena. During the Trump presidency, state and local policy actors have maintained institutional checks and balances against attempted unilateral actions…”

President Biden has shown unmistakably that he intends to fulfill his campaign promise to “sign a series of new executive orders with unprecedented reach that go well beyond the Obama‐​Biden Administration platform…” Following the example of states acting to “undercut Trump’s executive initiatives and reduce their impact,” several States are now stepping forward to “maintain institutional checks and balances against [such] unilateral actions.”

North Dakota is considering a bill to establish a state review process for presidential executive orders. If found to be unconstitutional by the State, state officials and publicly funded organizations would be barred from aiding in the implementation of the order.

In Oklahoma, legislation would extend the constitutional review and implementation bar to any federal action and was adopted by the full Oklahoma House by a wide margin.

In Utah “Executive Order Review Process Amendments” passed in the House and Senate and awaits the signature of the governor.

So far, more than a dozen other states have introduced similar legislation.

As James Madison warned in Federalist No. 48,

“An elective despotism was not the government we fought for; but one in which the powers of government should be so divided and balanced among the several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by others.”

The Functional Federalism Working Group (FFWG) of the Center to Restore the Balance of Government is working with state leaders and constitutional stakeholders to explore how to resist any “elective despotism” and to restore constitutional balance between the two spheres of government.

The next FFWG meeting is Friday, March 26, 2021 at 3pm ET. Participants will hear from Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies and author of the recently released Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court.

Certainly, the forces of federalism must matter as much under a Biden administration as they did under a Trump administration for “all who take [a king] will perish by [a king].”