The last of the conservative news magazines was the US News & World Report under the leadership of Editor David Lawrence. In 1962 he wrote about the illegality of the presidential executive order which circumvented the United States Constitution, the people, Congress, and the rule of law.
Bernhard Thuersam, www.circa1865.org
Executive Orders a Form of Extremism
“We hear a good deal nowadays about “extremists” – those who brand as Communists other persons who are not Communists. Name-calling, while deplorable, doesn’t do as much harm to the American people as a whole as do the “extremists” in public office who would disregard the Constitution.
For there is a trend today toward circumvention of the Constitution. Scarcely a month goes by that some new legislative measure or executive order isn’t proposed which seeks to “get around” the Constitution. The argument recently espoused in all seriousness as an alibi by some people inside and outside Government is that amending the Constitution is a laborious and slow process. The point is made that “times have changed” and that some of the doctrines of past decades in the field of law have become obsolete.
Oddly enough, that‘s exactly the excuse Nikita Krushchev gives for abrogating the allied agreements made in 1945 to insure unrestricted access to Berlin. He says these agreements are outmoded. Is it right for one party to an agreement to declare arbitrarily that he will no longer abide by its terms because he decides it is obsolete?
The people of the 13 original States, by a compact with each other, gave up certain rights and delegated them to a central government. All powers not enumerated in the Constitution as having been delegated to the Federal Government were specifically “reserved to the States respectively, or to the people.” This is the language of the Tenth Amendment. Why is this agreement so persistently violated?
If the people at any time wish to change the Constitution, it can be amended by a two-thirds vote of Congress followed by acts of ratification by three-fourths of the States. But we hear today that this is “too cumbersome” a method and that “it takes too much time.” Yet some amendments have gone through from congressional action to State ratification in less than a year. The truth is that where there is substantial opposition to an amendment, it naturally isn’t approved.
Unfortunately, our record as a nation is not clean. The Fourteenth Amendment was not legally inserted in the Constitution. The same Southern States which were considered eligible members of the Union when – after the Civil War was over – they ratified the Thirteenth Amendment abolishing slavery were then punished by Congress for refusing to ratify the Fourteenth Amendment. “Ratification” was accomplished by legislative coercion of the States by Congress and at the point of a bayonet by armed forces stationed in the State legislatures.
Yet this same Fourteenth Amendment is the basis of most of the executive orders on “civil rights” today. The Supreme Court has never consented to pass upon the validity of the method used to “ratify” the Fourteenth Amendment, though the Court has accepted cases challenging the validity of other amendments.
Recently a new trend toward usurpation of power has arisen. It seeks by executive order, or by the passing of new laws, to thwart or ignore the plainly written provisions of the Constitution. President Kennedy sent a bill to Congress a few weeks ago proposing a far-reaching change in the handling of tariffs. The Executive would fix the duties and commodity quotas – a power granted by the Constitution only to Congress.
The bill, now before the House Ways and Means Committee, provides, moreover, that presidential determinations “shall be final and conclusive and shall not be subject to review by any court.” Why should the people be deprived of judicial review when they are the victims of illegality in the application of trade laws?
Also the Kennedy Administration has just signed treaties with 24 countries on trade relations, but does not intend to submit these agreements to the Senate for ratification by a two-thirds vote. Executive orders have been issued, moreover, in “civil rights” matters, on many of which Congress itself has refused to pass laws. Thus, by executive order, purchase contracts for goods and services can be withheld by the Government from any business which refuses to accept the Government’s dictation as to the number of employees of a particular color that the contractor or subcontractor may hire. It certainly is a form of “extremism” to substitute executive orders for the laws of Congress.
Extremism is bred by extremism. We would have less trouble with the malcontents in our midst if the spirit and letter of the Constitution were observed.
If the method of amending the document is too cumbersome, let the people by the constitutional method change it. But let’s face the fact that new “extremists” have arisen who believe that the executive order can circumvent the Constitution if the stated objective merely has “popular appeal.” This is government by emotion – by extremism. It is not a government by a written Constitution.”
(US News & World Report, Editorial, David Lawrence, April 2, 1962, page 108)