The Hill op-ed: Ruling by Decree

by David Driesen

March 07, 2017

This op-ed originally ran in The Hill.

The Feb. 28 executive order overturning a Clean Water Act rule clarifying EPA's jurisdiction over wetlands furnishes but the latest example of President Trump's propensity to rule by almost daily fiat. Trump has ruled by decree ever since he assumed office. He has not proposed a single bill to our elected representatives, not even a bill to help blue-collar workers and rebuild America through infrastructure projects, one of his main campaign promises. Nor has he supported a bill introduced by others to accomplish this.

Our Constitution, however, authorizes an elected legislature to establish laws and directs the president only to "faithfully execute" them. And it requires all government officials to swear an oath to obey the law. The introduction of the oath clause into our Constitution marked a sharp departure from prior practice, under which government officials swore fealty to obey a supreme leader.

This rule of law has served America well. In countries like Putin's Russia, where one ruler controls, the law does not establish just standards but instead authorizes the ruler to punish adversaries and to empower and enrich his cronies. The most prosperous countries on earth have divergent tax and regulatory regimes, but they all have a stable rule of law.

Even though elected legislatures often move with painful slowness, citizens' ability to control the law's content through locally elected representatives limits the damage a single erratic person can do to society and the economy and over time corrects many egregious errors.

Liberals and conservatives usually react to Trump's decrees in predictable ways, decrying the orders they do not agree with and supporting the ones they like. Trump's supporters seem delighted because some of the orders implement campaign promises. But in reacting this way, we may be missing the point.

Read the full op-ed in The Hill.

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Also from David Driesen

David M. Driesen is a University Professor at Syracuse University College of Law, and an Adjunct Associate Professor at the State University of New York College of Environmental Science and Forestry. He holds a J.D. from Yale Law School. He is a member of the editorial board of the Carbon and Climate Law Review, published in Berlin and Environmental Law, published in Oxford.

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