LETTER FROM THE EDITOR
force than regulations, which have greater legal force than executive branch directives/ guidance... Also, there’s no legal significance to the word ‘order.’” Thus, an executive order falls somewhere between empty threats to take the car keys if your teenage kid doesn’t mow the lawn and saying, “pretty please with sugar on top.” ... Which Biden’s “Executive Order on Promoting Competition in the American Economy” comes right out and admits on the last of its 16 pages. I shall break my promise with one more dreary quote from the document:
Don’t we have a system of checks and balances?... Or checkbook balances?... Or an Olympic balance-beam medalist?... Or something like that?... It’s in the Constitution. Therefore I got in touch with my brilliant friend Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute libertarian think tank. The essence of the ignorant question I asked Ilya was, “Presidential executive orders? WTF?” The essence of Ilya’s informed reply was that executive orders are “the president telling his underlings how he’d like the law enforced.” Thus, an executive order falls somewhere between empty threats to take the car keys if your teenage kid doesn’t mow the lawn and saying, “pretty please with sugar on top.” I italicized the “like” because, although Ilya notes that executive orders can be thrown out in court and nullified by Congress, I’d also add that they can be ignored (with some political peril) by federal appointees. You remember how Trump kept ordering and ordering “The Wall” to be built but still wound up with not enough fencing along the Rio to contain a small herd of cattle? Ilya continues, “You can think of it this way: Constitutional provisions have greater legal force than statutes, which have greater legal
This order shall be implemented consistent with applicable law and subject to the availability of appropriations... Nothing in this
order shall be construed to impair or otherwise affect: the authority granted by law to an executive department or agency... This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforced at law or in equity... In other words, the executive order is a pointless waste of time. And I worry that so is this Letter From the Editor. Except for one thing... President Biden has just given us an important and worrisome, if somewhat blurry, vision of “how he’d like the law enforced.” And when it comes to law, I don’t care for presidents with blurry vision.
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August 2021
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