The Problem with Mandates

There is a short, pithy line that a lot of us find ourselves saying these days… one which merits reconsideration because it is only occasionally accurate.

“Mandates are not laws.”

It’s only four words long; therefore, it works well as a tweet or Facebook comment. It fits on a picket sign.  People mutter it all the time, nowadays, especially in the context of masks, social distancing, and vaccines.

But is it true?

Frankly, it depends. Sometimes the statement is true -- some mandates are not legally binding at all -- but often, when legitimate, this is just a distinction without a difference.

In the United States, we, the people, through our state legislatures, ratified a federal Constitution, providing authority to the federal government to do certain things. Only certain things. Each state also ratified a state constitution, authorizing each state government to do certain things. Only certain things.

Under these constitutions, the respective legislatures pass laws all the time… and also create bureaucratic departments and agencies to do the legislature’s bidding, to administer the programs, to flesh out the details, and make it happen.

As a result, our executives -- the president and the governors -- issue executive orders constantly.  And those bureaucracies must issue implementing rules, literally all the time. (Take a look at the size of the Federal Register sometime).  If Congress says “collect a 20% tax” or “allow a $2000 deduction,” then the IRS has to create forms and require people to file them. That’s how it works. Congress has the power to tax, so it has the power to delegate enforcement of that tax to the IRS.

So, are these executive orders and bureaucratic mandates legitimate? That is, are they proper; are they real? Do mandates have the force of law; do we have to obey them?

The Left believes it is automatic; the Left desperately wants you to believe that once someone wins an election or is appointed to a government job, he has the power to do anything he wants.  “Elections have consequences; to the winner go the spoils,” they tell us with pride, and sometimes even glee.

It’s a lie.

In fact, an executive order or agency mandate is only legitimate if both of the following have occurred:

1: The order or mandate is within the scope of the authority that the legislature has granted to that executive or to that agency, and

2: The order or mandate is constitutional; that is, the relevant constitution specifically granted the legislature the authority to delegate to that executive, or to that agency, in the first place. A legislature cannot grant a power that it doesn’t even have to grant.

How many of the E.O.s and mandates issued by Joe Biden, Gavin Newsom, J.B. Pritzker, or Gretchen Whitmer have been in line with the authority granted them by their respective constitutions and by state and federal law?  Think of not only the times they’ve exceeded their authority; think of the times when they have directly contradicted legislative orders, daring a legislature to attempt pulling them back from their illegal actions.

Congress had directly ordered the State Department to move our embassy in Israel to Jerusalem for decades, and president after president outright refused until President Trump happily complied.  Congress had passed laws providing direction and funding for the construction of a border wall and the new Keystone Pipeline; Joe Biden illegally voided legal construction contracts and stopped the work, all through executive orders.

These sorts of things happen every day, at every level of government, from coast to coast.

If there is any good to come of this most recent two-year experience in tyranny, then it may be the rediscovery of these very limits on government whim, by a population that had allowed itself to grow complacent and forget all about them for far too long.

The mask and the vaccine mandates, from the local level to the national, have not occurred in a vacuum.

Governors, bureaucratic agencies, and even presidents, have watched the American people gradually forget the philosophy of limited government on which our nation was founded.

There are things that a mayor, governor, or president simply cannot do. Not because he doesn’t dare, not even just because they are not right, but because the people never granted them the authority to make those calls at all.

The most important single element of American government has always been the 10th Amendment -- because it serves as a constant reminder, both to Americans and to onlookers all over the world, that Americans believe in limited government, and that, in these United States of America, it is the individual who is ultimately sovereign… not some petty bureaucrat, not some party hack, not even a lofty politician in a taxpayer-funded mansion, with a seal on his podium and a pre-written speech on a teleprompter, even if he has a phone in his hand and a pen on his desk.  The source of authority in a free country is the sovereign citizen.

Power abhors a vacuum. The practitioners of power will always attempt to exceed their authority.

The American way to respond to that force is to build a wall -- around Washington, around Sacramento, around Springfield, around Lansing -- through constitutions and memories that last through Election Days, so that such an overreach is not even attempted.

As we rightly push back on the many unconstitutional dictates relating to the CCP virus, it is critical that we recognize how widespread this practice has really become over the past century.

From local school boards to state-level departments of natural resources… From your local village zoning board to the federal EPA and DoJ… The practice of exceeding one’s legitimate authority has become almost universal. The most crippling regulations and mandates are often policies that were never legally implemented at all.

Why has America lost so much manufacturing? Why is crime rampant? Why do foreign gangs infest our neighborhoods? Why are high schools and even grammar schools talking little boys into thinking that they are girls? Why does California think it can ban half the available trucks from picking up cargo in a crowded seaport?

Not because of any flaw in our constitutional form of government, but because our constitutions themselves have been abandoned; because our electorate has neglected enforcement of the clear, stringent limitations on the whim of public servants that were built into our system in the first place.

Yes, force the tyrants to withdraw the mask and vaccine mandates. Now. Of course.

But don’t stop there.

To truly bring back America, to deliver on the promise that our Founders’ vision originally designed, we must return America to a nation of strictly, rigorously limited government -- at every level.

John F. Di Leo is a Chicagoland-based international transportation professional.  A onetime Milwaukee County Republican Party Chairman, he has been writing a regular column in Illinois Review since 2009.  His book on vote fraud (The Tales of Little Pavel) and his brand new political satires on the current administration (Evening Soup with Basement Joe, Volumes I and II) are available on Amazon.

Image: Billie Grace Ward

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