Trump v Biden: Executive Order Rule

[Editor’s Note: This is the latest edition of Tick’s Notes and Tunes. It is a transcript of a fictional radio broadcast with direct links to the tunes being played. The transcript is in 3 parts.

(1.)The first is the first half of a transcript of the radio broadcast with tune links; (2.) The Editorial: Trump v Biden: Executive Order Rule; and (3.) The second half of the radio broadcast with tune links.

The purpose of this blog is to discuss, enlighten and educate the reader about relevant political, economic and business matters and to help maintain both a record and an appreciation for good ole man-made music. ]

Good evenin’ everyone

Stony Riva here

And at your service.

We’re gonna kick it off tonight

With a visit

Or should I say

A re-visit

Cos I think we played this tune before

Anyway we go first

to the land down under.

Here’s a song that won the

WAM …Western Australia

song of the year in 2013

I really like this

And the video as well

Hope you do too…

Here’s

Boom Bap Pow with Suit

https://youtu.be/7C3uRqjA8UE?si=usJY4a37nK01g3Ae

That sizzling lead singer was/is

A gal named Novac Bull

And that tune was written by bandmate

Aaron “Azz” Linton

I might be wrong

but I think that song

Was actually a part of a diet Coke commercial

A while back

Okay,

Our station go-to guy here at DJ Ltd

…Buck …is a sittin’ over

In the control booth

Kicked back

Actin’ like he owns the place.

Anyway I promised him

That I’d play this next tune

Because it was a fav

Of his granddad

who unfortunately

passed away

….

When Buck?

….on Monday

So sorry Buck

What was his name?

Granddad Smitty they called him

Okay

Here’s a tune

Dedicated to none other than

You Granddad Smitty….RIP

Buck wants you do know that

You will be deeply missed.

Folks…here’s

Bill Anderson with some real true blue

Classic country…..a tune called Still

https://youtu.be/AMtIVKZ2WJk?si=OB6dlaD36xRIcp0h

Yeah, my daddy had that tune too on one of his

Favorite albums…way way way back.

Bill Anderson of course, was/is originally from Georgia

and has written a lot of country music hits for a lot of different

artists including George Strait and many others.

And has even been a TV game show host.

But movin’ on

We’ve heard so many times

That GURU isn’t necessarily the fan

Of a particular genre…

…ahem

Perhaps it’s a little too glitzy for him

Or somethin’…who knows?

I mean GURU isn’t exactly

The paradigm of sartorial impeccability

And you’re damned lucky if ya catch him

When his jeans don’t have a hole in the knee

But Suzi…God bless her

…has begged me to play this next tune

And who knows maybe even Red Dog will like it

In thinkin’ about it.

It’s kinda interesting how

the Soul genre sorta segues into disco

In a lot of ways.

What’s this….

…Guru is texting me.

…says that Suzi told him about our next tune

And he wants to make it crystal clear

That he thinks that this group

Is an A first class great group.

Well…now that we got that straight

what more can we ask for ?

So let’s go ahead

And Let’s Groove with

Earth Wind & Fire

https://youtu.be/Lrle0x_DHBM?si=sh9lyfVzViUVju3_

Well, folks.

It’s that time again.

Time for our station manager Rufus Coldwater

…whom I sometimes mistakenly refer to as

Rufus Coldwell,…who was a guy I used to know

Many many years ago

.sorry about that Rufus

Anyway here he is

To shed a little of his insight into the nature

Of all things….

Whether Important or not

Here’s Rufus Coldwater with tonight’s editorial.

————————————————————

Hello folks:

I ran across an interesting article addressing the charges and counter charges being made by the two sides of the upcoming election. This aspect of the debate has to do with who has issued more executive orders, Biden or Trump.

For those who may not be familiar with them, executive orders are issued by the President of the United States. My understanding is that while they do have the force of law, that there is nothing in the Constitution that expressly gives the President the power to issue executive orders.

The Oracle of Wiki—you know it as Wikipedia—in its article concerning executive orders states as follows:

“The U.S. Supreme Court has held that all executive orders from the president of the United States must be supported by the Constitution, whether from a clause granting specific power, or by Congress delegating such to the executive branch. Specifically, such orders must be rooted in Article II of the U.S. Constitution or enacted by the Congress in statutes [that Congress enacts.] Attempts to block such orders have been successful at times, when such orders either exceeded the authority of the president or could be better handled through legislation.“

In that same article the Oracle goes on to say that:

“Harry S. Truman issued 907 executive orders, with 1,081 orders made by Theodore Roosevelt, 1,203 orders made by Calvin Coolidge by and 1,803 orders made by Woodrow Wilson. Franklin D. Roosevelt has the distinction of making a record 3,522 executive orders.^” “

However in those instances where Congress has not passed an express statute authorizing the President to act, Presidential power to issue executive orders is usually deemed to be only an implied power granted to the President by Article II of the Constitution which basically gives the President the general duty and authority to carry out the laws, which are the laws passed by Congress. In other words, in order to carry out the laws the President has to have the power to command and direct all of the military, and all employees and official of the federal government to carry out the law, and thus it is necessary for the courts to infer that the President has implied authority to direct the military and/or federal officials and employees to act to carry out the law. Importantly, however, there is no “express” language in the Constitution itself giving the President any authority to issue executive orders.

Thus, to simplify, it looks like unless an executive order is expressly authorized by Congressional statute, a Presidential executive order can only order the military and/or federal officials and employees to do or not do something to carry out existing laws then already in effect and/or perhaps to defend U.S. interests from foreign aggression. An executive order issued by the President, however, cannot contravene existing law such as the Constitution itself or a statute enacted by Congress. In other words, broadly speaking, an executive order that actually makes or attempts to “make law” is likely to be challenged by those affected and often held to be unconstitutional and thus invalid. Simply put, the President is not supposed to “make law” when he or she issues and executive order, unless Congress has expressly authorized him to make law, which Congress sometimes does when it authorizes the executive branch to issue regulations interpreting and implementing existing statute such as the tax laws.

Without going into detail, these things called “Presidential Proclamations” are also issued from time to time by the President. These Proclamation are intended (perhaps tongue in cheek) to apply to everyone and thus are not just restricted to being directions to the military and government officials to act in some way. Clearly, the President does not have the right to unilaterally create law that applies to everyone. As such, traditionally, these proclamations have been issued only for more ceremonial (and thus less serious) purposes, such as “pardoning” a Thanksgiving turkey. Thus, they are not relevant to this discussion, with at least one interesting and major exception—that being the Emancipation Proclamation, which was in reality more like an executive order. And so, to keep things interesting let’s look at it as such, and analyze whether it was valid or not.

And so, here it is. A verbatim quote of the relevant portions of the Emancipation Proclamation:

*******************************************

By the President of the United States of America:

A Proclamation.

…

“That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.

That the Executive will, on the first day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any State, or the people thereof, shall on that day be, in good faith, represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such State shall have participated, shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State, and the people thereof, are not then in rebellion against the United States.”

Now, therefore I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do…. publicly proclaimed for the full period of one hundred days from the day first above mentioned, order and designate as the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, the following, to wit:

…[Editor’s note: Inserted here in the Proclamation is a very interesting list of both the states and a few particular counties which are considered to be “in rebellion” against the United States.]

And by virtue of the power and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.

And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defence; and I recommend to them that, in all cases when allowed, they labor faithfully for reasonable wages.

…

In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.

….

By the President: ABRAHAM LINCOLN

…

**********************************************

Let me strongly emphasize that the following is not to be taken as an argument in favor of slavery and/or White racism. It is merely an intellectual exercise to help us learn more about executive orders and how far they may or may not go in creating law. In reality, the legal validity of the Emancipation Proclamation is, of course, now a moot question because of passage of the 14th Amendment and various civil rights laws which outlaw slavery and racial discrimination.

Here’s the question. Assuming that the Emancipation was an executive order, was the Emancipation Proclamation (herein “EP”) constitutional, or was it an improper usurpation of powers that only Congress could exercise by passing a statute containing the provisions found in the EP?

One could make a very strong argument that the EP was an unconstitutional usurpation of Congressional power, at least in the following respects: (i) in allowing the President (and not Congress) to determine which states and localities were “in rebellion” against the Federal government.; (ii) in freeing the slaves; and (iii) in ordering that they be paid reasonable wages when allowed.

Why do I say this? Because most of these provisions of the EP make substantive law. They do not merely state how the military and/or federal employees should treat black slaves. Instead the EP goes well beyond that. If the EP merely told the military and federal employees to free slaves wherever they found them, then that would have been a more lawful exercise of Presidential power than taking the additional step, which the EP unconstitutionally does, in recognizing the slaves as free men and women and changing their status and thus giving them the full legal rights of all other citizens—including the right to be paid for their work.

In fact, one could make a strong argument that the whole EP was invalid in toto, simply because only Congress could pass a law freeing the slaves and only Congress could pass a law declaring which states were in rebellion. In fact, given the existence of the Three-Fifths Compromise, freeing the slaves might have required a Constitutional Amendment.

In short, the EP was a blatant exercise of dictatorial power.

However, if one were to realistically assess a situation, whether a President can get away with issuing an executive order containing some significant substantive teeth—in other words, which probably does actually make law and/or usurp a power that probably rightfully belongs to Congress, one probably has to look at the actual circumstances under which the order was issued. If, in fact, an emergency existed and/or there’s a lot of public support for what the President is trying to do, he is much more likely to get away with issuing an executive order that has a lot of teeth and probably does usurp Congressional law-making power than if that is not the case.

But in law school they have a saying. “Hard cases make bad law”. And even though the EP was/is morally justified in freeing the slaves, in many ways its sets a precedent supporting those who argue that Presidents have more power to act by executive order than they really were intended to have under the Constitution.

In any event, given the finger pointing about who is the “wannabe” dictator, we thought you might like to know the foregoing.

Oh, by the way. Here are the most recent numbers on executive orders issued according to the Oracle of Wiki:

Ronald Reagan 381

George H.W. Bush 166

Bill Clinton 364

George W. Bush 291

Barack Obama 276

Donald Trump 220

And then another source gives us the following figure for President Biden:

Joe Biden 139 (thru June 26, 2024)*

[ *For a more in-depth discussion of this topic click on the link below: https://ballotpedia.org/Joe_Biden%27s_executive_orders_and_actions ]

Thus, in a sense, it appears that neither the Biden nor the Trump camp can make much of a case that their opponent is a “wannabe” dictator if their argument is based solely on the number of executive orders issued by their opponent. To make that case both sides will have to rely on other factors, such as what the executive orders that they did issue actually did. In terms of significance and the amount of potential Presidential overreaching all executive orders are certainly not equal. Consider the importance of the Emancipation Proclamation just discussed. Moreover, military actions have been authorized and even federal agencies established pursuant to executive order. No one would argue that those kinds of executive orders are of the same consequence as an executive order requiring that all coffee served at federal office buildings be brand XYZ and no other. However, that topic, will have to await another day.

Well that’s it for now.

This is Rufus Coldwater

Back to you Stony

————————————————————-

Thanks Rufus.

We’re back!

Folks, as Yinz all know

Our Executive Assistant Producer of Many Things

…Suzi…

Is normally tasked with goin’ to the garage

And pickin’ out something from

Way back in Ye ole 45 rpm vinyl days.

But today, I gave her a break

And I went down there myself

And I found this next record

Of all places

Behind the john

In our “uni” slash “multi” sex

universal

open to all

bathroom down there

For those souls

Intrepid enough

To venture in there.

And it does take some cajones to go in thar

So, she musta have been intending to bring it to us

But forgot she put it there

In any event, I am, in fact familiar with this tune

And I remember that these guys at times

Sound like Eric and Jack …talkin’ of Cream here

Harmonizing

See if yinz agree

…here’s

Rupert’s People with Dream on My Mind

https://youtu.be/8Z1RdsxLdJg?si=F1f3forxt12D18Bn

Wow,….that was AWESOME!

Just a word of warning..

If Yinz try to look up Rupert’s People

Yinz Aint gonna find much

Ya may wanna try the real name of the group

Les Fleur de Lys

Okay the clock’s a tickin

So we better be a clickin

Next is…amazingly enough…

a 21^st Century group

From Los Angeles

that we also visited

once before

Just a very short while back

Looks like they’ve released about 5 albums

One thing I like about this next performance

Is that they sound a little out of tune

…but it’s great

…beware though

the singin’ begin’s a little later on in the tune

and by the way

GURU says when he hears artists like this

He thinks there might even be hope

For 21^st century music.

And that he really digs what they do.

Hopefully you will too

So…Here’s

Allah Las live with Catamaran

https://youtu.be/Qnmwfbj25kw?si=0SxjPukIlCapeTVu

They are just sooo garage.

And I say that as a big time compliment.

Well, our friend the clock on the wall

Is screamin’ at me

To wrap this up

Before we get cut off mid-tune

By the Gods of the airwaves.

Our last group needs no introduction

We’ve had them on the show several times

And inflation bein’ what it’s been

a lot of people

Are gonna be able to relate to

what this tune’s is all about

And so, without further ado

Hittin’ clean up tonight is

Clearly one of our very favorite bands

none other than

the inimitable Kinks

with Low Budget

https://youtu.be/j4-1VyLbZjk?si=ceDewq0nOcQHO6n9

I’ve said it before

And I’ll say it again

I love Dave Davies’ ggeeetttar playin’

And let’s give some love

to the other Kinks on that track

they are

Jim Rodford – bass guitar, backing vocals

Mick Avory – drums

Ian Gibbons – keyboards, backing vocals

And, of course, Ray Davies ain’t no slouch of a front man

…or composer for that matter…either

Alright!! that’s gonna do it

So, for Rufus, GURU, Suzi

… and, if he’s around here somewhere

Buck

I’m Stony Riva

Yinz are the best

Thanks for listen’

Thanks for watchin’

Until next time

Goodnight

And remember…

…don’t let

Them gosh darned bed bugs bite.

————————————————-

END NOTES:

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