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December 16, 2023

The Constitution created a chief executive who was supposed to have very few powers. His remit was foreign policy. Individual states weren’t allowed to deal directly with foreign powers, so that was left to the President. No police power exists in the Constitution, so disputes between the states would be dealt with by the Courts. The powers of the Congress were originally limited to a series of specific acts beginning with “To borrow money…” in Article I, Section 8. This didn’t leave a lot of room for a pen and a phone.

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Unfortunately, the Supreme Court decided to ignore that original meaning in 1936, when it ruled in United States v. Butler that “general welfare” was a separate power. The net effect of that decision was that Congress was no longer limited in its spending. Literally everything was on the table, and it hasn’t yet been possible to put that genie back in the bottle. The Court whisked away James Madison’s original argument that the phrase “provide for the general welfare” simply explained how the list of enumerated powers should be understood.

FDR enjoyed that freedom in implementing his New Deal programs, including Social Security (which is neither). But perhaps the Greatest Leap Forward came with Barack Obama.

Obama asserted that because Congress wouldn’t do the things he wanted on immigration, he’d do his own thing. Montblanc to the rescue! DACA got dropped on America. Regrettably, since he was granting a benefit to illegal aliens, he wasn’t directly injuring any Americans.

Image by AI.

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This created a real problem. How do you get in front of a Federal Judge? Article 3 says that the judicial power extends to “controversies…at…law and equity.” The Supreme Court made it clear in 1992 that “As the parties invoking federal jurisdiction, respondents bear the burden of showing standing by establishing, inter alia, that they have suffered an injury in fact, i.e., a concrete and particularized, actual or imminent invasion of a legally protected interest.”

In plain English, this means you must show how the government directly injured you. Spending on unconstitutional stuff (goodies for Guatemalans) doesn’t cut it. I may have to pay more taxes because of the spending but showing that I personally suffered is just a bit difficult. If I get into court, I’ll be thrown out because the dollars I paid went for the Army or some other legitimate purpose.

I’ll get in front of a judge when I claim that the National Firearms Act of 1934 impairs my Constitutional right to have a silencer. That’s a “concrete, particularized, injury” because infringement of any protected right is defined as an injury that grants standing. Otherwise, the Feds can get away with almost anything. General or widespread injuries do not, by themselves, get you in the courtroom door.

It took a state attorney general to find a concrete injury due to DACA. And eventually, after many twists and turns, DACA has lost. But the Supreme Court hasn’t told anyone how to manage the fallout. DACA is illegal, but DACA beneficiaries are still here.

Leftist legal analysts have no problems with any of Obama or Biden’s executive orders. These have spent money, instituted rules, and generally advanced the growth of government. The analysts aren’t wrong that EOs can be lawful. But the purpose of EOs is to deal with executive branch organization and function. They aren’t supposed to be used for creating laws like DACA or permanent Emergency Declarations. Yet this is exactly what Obama (276) and Biden (126 to date) have done. In spades.

By raw number, Donald Trump (220) is in the same league, but his were largely devoted to foreign policy, reducing regulations, and border security. Obama and Biden devoted large swaths of their penmanship to Social (in!)Justice, “Equity,” “Gender Identity,” the Green New Deal, and other woke projects. All of these were designed to increase government control over society in favor of anointed groups. Any of these where plaintiffs have been able to establish standing have been overturned. But many remain and hope of legal review is slim. The system is stacked against it.