If Republican candidate debates are an indication, executive orders have become anathema to Tea Partiers. This is bad news for Rick Perry– and not just because in a lapse from his usual know-nothing, puritanical moralizing, the Texas governor issued an executive order mandating that young girls be vaccinated against the human papillomavirus (a sexually transmitted cause of cervical cancer). A week or two ago, if it had just been a campaign contribution from Merck Pharmaceuticals that led Perry astray, he could have counted on the Tea Party’s movers and shakers to be forgiving. After all, political corruption is their life’s blood. But now that the word has gone out to the rank-and-file that executive orders are bad, all bets are off.
Perry has other executive orders on his record too, as does former Massachusetts Governor Mitt Romney. It’s a governor thing; chief executives like executive orders. In Romney’s case, it hardly matters because it has been clear for months that, to get the nomination, he will have to be forced down the throats of the Tea Party rank-and-file. Perry, on the other hand, was their new golden boy, a more electable version of Michele Bachmann. If he falters on this account, Bachmann, though written off when Perry entered the race, may be back in the running – if only she has the wits to keep on taking advantage of the situation (and assuming that her pray-the-gay-away husband Marcus gives her permission)!
The hypocrisy is staggering. There was hardly a peep of complaint in proto-Tea Party quarters about executive orders – or, worse, signing statements – when George W. Bush abused those practices at historically unprecedented levels. The right’s newfound aversion plainly has more to do with hating Barack Obama (for all the wrong reasons!) than political principles. Nevertheless, Bachmann and her co-thinkers have a point.
It isn’t or rather shouldn’t be the job of the President to make laws, but only to execute them. That is what the authors of the U.S. Constitution believed, and for good democratic reasons. Over the years, a host of complications have clouded the issue, and both the Congress and the courts have added complexities. But Tea Partiers abhor complexity; they don’t have a head for it. The general idea, straightforwardly applied, is enough for them.
Thus Tea Partiers deem executive orders “unconstitutional,” though they plainly are not according to any of the usual understandings of the term; and, to the extent they feel compelled to justify their assertion, they appeal to the “originalist” jurisprudence of Supreme Court Justices Antonin Scalia and Clarence Thomas and their co-thinkers. For adherents of that school of thought, Americans today should be governed by the views of the eighteenth century merchant slavers and plantation slave-owners who drew up our constitution in 1787, irrespective of the merits of the issues involved.
A position so absurd could only be taken seriously in a political culture that has not yet rid itself of the residues of a Protestant past that accorded pride of place to notions of Biblical inerrancy. For reasons inscrutable to all but themselves, originalists (including right-wing Catholics like Scalia) effectively substitute the Constitution for the Good Book. And by the time their thinking filters down to the likes of Michele Bachmann, and to hapless Tea Partiers even less thoughtful and articulate than she, the absurdity is a hundred-fold greater. As usual: tragedy first, then farce.
Still, Bachmann and the others are right – in theory – because in a democracy legislation is a task for the people themselves or, since that is impractical in most instances, their representatives. Legislators should legislate and executives should execute the laws legislators enact. Executive orders blur the distinction between legislative and executive functions even when they do not obliterate the difference entirely.
This is why echt Tea Partiers like Bachmann have a point – and not just, one is tempted to say, on top of their heads. But their point carries only to the extent that legislatures operate in more or less the way that democratic theory, in its many varieties, maintains they should. That is seldom the case nowadays, especially in the U.S. Congress, where thanks in part to rulings made by those very originalists whose thinking helps motivate Tea Party madness, legislatures have become bought and paid for assets of corporate rent seekers. In conditions such as these, legislatures hardly operate in the way that every plausible democratic theory assumes.
When the actual deviates from the ideal to such an extent, executive orders take on a different coloration; especially if they are wielded by chief executives who are genuinely committed to democratic ends. Then they can even advance democratic objectives at the same time that they offend democratic principles. Of course, we don’t have chief executives committed to anything so lofty as (small-d) democracy, not in Washington anyway. Instead, we had George W. Bush, with Dick Cheney operating behind the scenes, and now we have Barack Obama, who, it turns out, is little more than a self-serving continuator of the Cheney-Bush tradition.
Even so, some executive orders in some circumstances can be helpful; for instance, one Obama never issued that would have abolished Bill Clinton’s (defeated, but still in force) “don’t ask, don’t tell” policy on gays in the military. Contrary to what Michele Bachmann insists, in real world politics today, the practice is not entirely to be despised.
But she and other hard core Tea Partiers are on to a real problem. To be sure, Tea Partiers make this and all other problems worse, not least because the political mainstream – and lately too, the mainstream media (witness CNN, cosponsor of Tea Party conclaves) – slavishly follow their lead. But at least Tea Party true believers have some inkling of what ought to be the case. This is more than one can say for Republican and independent “moderates” and for those eminently reasonable Obama liberals who hasten to accede to the Tea Party’s transparently unreasonable demands.
Andrew Levine is a Senior Scholar at the Institute for Policy Studies, the author most recently of THE AMERICAN IDEOLOGY (Routledge) and POLITICAL KEY WORDS (Blackwell) as well as of many other books and articles in political philosophy. He was a Professor (philosophy) at the University of Wisconsin-Madison and a Research Professor (philosophy) at the University of Maryland-College Park.