Author of ' The President Who Would Not Be King' on the rise of executive orders

Michael McConnell, The President Who Would Not Be King: Executive Power Under the Constitution Author, joined Yahoo Finance to discuss the limits and role of executive power as President Biden takes office.

Video Transcript

- President Biden is getting ready to sign 17 executive actions. 15 of those will be executive orders. Many, of course, overturning those that President Trump put in place. For a little bit more about this, we want to bring in Michael McConnell. He's the author of "The President Who Would Not Be King: Executive Power Under the Constitution" and also senior fellow at the Hoover Institution. And, Michael, great to have you on the program.

Of course, we're seeing this rising use, I should say, of executive orders. What are your thoughts on the use of executive orders, both by what we're expecting to see President Biden do later today, and then, of course, by President Trump during his administration, and then the constitutionality of the orders?

MICHAEL MCCONNELL: So you can't actually generalize about this. One reason why we've seen such a rise in the number of executive orders really since, I think, George W. Bush was the administration that really made a change in this, is more political than legal. That is, when a president issues an executive order, it makes the policy come from the White House from the president himself rather than from the secretaries or the various parts of the administration.

But a lot of that doesn't have any reality to it. It's just that it does focus the attention on the executive branch. That's not true of all of them. But in terms of whether they are constitutional, again, you simply cannot generalize. Some are, and some aren't. One of the most important separation of powers case the Supreme Court ever decided, the steel seizure case, Youngstown Sheet and Tube against Sawyer, held that an executive order by President Truman was unconstitutional. But, you know, most of them are fine. It all depends on what their underlying authority is.

Executive orders are not in the Constitution. They're not mentioned in the Constitution. And in a sense, they don't really-- they aren't really a legal thing. It's just a label that we attach to the written, formal exercise by the president of powers vested in his office, either from the Constitution or from statute. And when an executive order is not grounded in a vesting of authority in one of those two ways like President Truman's, then the order is unconstitutional and should be held as such. And so you have to look at-- you have to look at each of these and see, you know, what is the underlying authority for them.

- Well, in this case, it looks like we're going to get a few here that are pretty much a wide gamut. When you think about the masking challenge President Biden is putting into place here as well as, you know, requiring masks in federal buildings, talking about the Paris Agreement, a lot of these things are things he's discussed and probably things that he would be able to pass through Congress. But when you focus in on executive action and executive orders, is that maybe potentially why we're seeing a rise here, just that it's easier to focus in on the executive branch rather than suffer, you know, the lengthy time that it takes, particularly when we're in, you know, a pandemic?

MICHAEL MCCONNELL: I mean, that is certainly true. Presidents often chafe against the check and balance of Congress and try to do things in a way which will avoid Congress. And you mentioned a couple of examples. The mask mandate, I think, is a bit of a misnomer. The president does not have the authority to require the wearing of masks everywhere, and President Biden isn't attempting to do that.

This is simply a regulation for what people do on federal property in federal buildings. He does have that authority, but that's simply because it's federal property, just like a private property owner would be able to say, nobody can come into my building without a mask. So also, the federal government led by the president is able to say that.

Reentering the Paris Accords is a very different matter. President Obama signed the Paris Accords at the very end of his administration, but that did not actually amount to very much because the Paris Accords are actually styled a treaty. Most places around the world treat them as a treaty. And the president does not have authority to enter a treaty on his own. It requires a 2/3 vote of the Senate.

And I don't-- you know, President Obama did not think he could get 2/3 of the Senate back then, and it seems exceedingly unlikely that President Biden can get 2/3 of the Senate today. And so that gesture is going to be largely symbolic. Now, there may be some things that the Biden administration can do on the basis of existing statutes that would promote the goals of the Paris Accords, but he could do those without signing the Paris Accords. The Paris Accords essentially have nothing to do with it.

On the other hand, his rejoining the World Health Organization is something he has the authority to do as president. That's part of the foreign affairs powers of the president. The president has authority to control communications with foreign governments, and part of that is deciding which international bodies we're going to be part of.

- Michael McConnell, author of "The President Who Would Not Be King: Executive Power Under the Constitution" and senior fellow at the Hoover Institution. Thanks for joining us today.