porphyrogenitus“Well I suppose it doesn’t hurt for people to continue pointing out they have no legitimate authority to do the things they do under the commerce clause or the taxing power. As a side note, I would guess that Nullification might see some push if they try to pass a lot of Federal restrictions on guns.”
Oh I totally agree with you on that. I also believe it’s useful to point out what “our actual constitution” is, and how (and when, and where) it became at variance with the written one everyone (including, I admit, I) still fetishize. Then hit them with the argument of what is actually legitimate (not much that the current federal government does). Then people start to see that the movement they believe “protects our constitutional rights the most” is actually the opposite (progressivism is actually the opposite of what most people think of when they hear the phrase “progressive” – I say this as someone raised in Wisconsin, who still has some respect for Robert Lafollette; but, of course, in many ways “Fighting Bob” was one of the few people who truly believed the rhetoric. Still, the program was wrongheaded – but my respect is for his sincerity).
“Does anyone know the historical context of how this power expanded?”
Tom mentions this in either the lecture on the Spanish American War or the Progressive Era (or both, I truly forget now); anyhow as with much else it started with Theodore Roosevelt, then got progressively worse over time.
Apparently now you can do practically anything you want with an executive order – witness how the current occupant rewrote welfare law with one, used one to compel people to violate their consciences, and rewrote immigration law with another; rule by decree is de rigur and limited only by how bold you’re willing to be (if you go to far you might alienate enough people in congress that it’ll take all of six months for them to get over it). The only practical limit on executive orders is the amount of public outrage, which gets less and less as people get accustomed to their abuse (aka “enlargement”).
The courts may or (almost always) may not reverse them, but in practice this is as likely as with any regular piece of federal legislation & regulation – that is, executive orders are treated, as a practical matter, identically to constitutionally-passed legislation (and regulatory codes enacted by agencies are, if anything, given even more latitude – see recent environmental regulations. Of course these are usually tied to some open-ended legislation passed through congress – or to an executive order – worded such that the agency is given the power to determine what the law on such and such will be, or, if the legislation is old enough, retroactively interpreted as to give agencies the power to determine the substantive content on the law regarding such and such. As a legislative body, Congress’ main role now is to enact bills that delegate legislative responsibility to other agencies – delegating the responsibility delegates the blame, so when a Congresscritter goes home and gets questioned by constituents, even if they voted for a bill, they can say “oh, that’s really bad how the agency is treating you. When I get back to Washington, I’ll be sure to look into that for you.”)