These Executive Orders Should Not Be Necessary

Commentary

You can scour the Founding documents all day and find very little support for government-by-executive-order. It was not supposed to be this way. It should not have to be this way. The President under the Constitution has a very limited role.

That said, most of the many executive orders issued by President Trump are purely restorative, a reaffirmation of core constitutional structures that had been previously ignored or overthrown. Therefore, these are not acts of executive imposition so much as deployments of power in order to give power back to the people.

In other words, most of the actions are not about the “imperial presidency.” They are about returning power to where it belongs and never should have left, namely to the U.S. Constitution and to the voters in a republican system of government.

This is why all the chatter about Trump’s use of power (“He’s behaving like a dictator!”) misses the mark. Completely.

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In recent years, plenty of government agencies have found a way around the law. They would call media outlets and social-media services, and even book retailers, and browbeat them to publish this and not that, take down posts, prioritize this content over that, delete whole groups, and ban accounts. In addition, government agencies constructed a vast web of third-party providers to make lists of approved and unapproved points of view.

This was pushed to crack down on disinformation and misinformation, as if it was the job of the federal government to decide what is what. Invariably, this was designed to bolster the industrial prospects of a particular industry. The result was a global censorship complex of astounding levels of complexity and reach. It became terrifying for everyone and deeply injurious to careers and reputations.

The result of that hearing was to reject the injunction on grounds that the plaintiffs did not have standing, as if the victims of censorship themselves have no real right to redress. Now the case is again tangled up in litigation that will likely last years. Despite tens of thousands of pages of evidence, the court could not somehow find its way toward enforcing the clear law of the land.

That’s when this executive order comes into play. Someone had to enforce the law against government overreach. That someone is President Trump. His executive order reads as follows:

“The First Amendment to the United States Constitution, an amendment essential to the success of our Republic, enshrines the right of the American people to speak freely in the public square without Government interference. Over the last 4 years, the previous administration trampled free speech rights by censoring Americans’ speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve. Under the guise of combatting ‘misinformation,’ ‘disinformation,’ and ‘malinformation,’ the Federal Government infringed on the constitutionally protected speech rights of American citizens across the United States in a manner that advanced the Government’s preferred narrative about significant matters of public debate. Government censorship of speech is intolerable in a free society.”

It continues: “It is the policy of the United States to: (a) secure the right of the American people to engage in constitutionally protected speech; (b) ensure that no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen; (c) ensure that no taxpayer resources are used to engage in or facilitate any conduct that would unconstitutionally abridge the free speech of any American citizen; and(d) identify and take appropriate action to correct past misconduct by the Federal Government related to censorship of protected speech.”

Great so far, so what is to be done? “(a) No Federal department, agency, entity, officer, employee, or agent may act or use any Federal resources in a manner contrary to section 2 of this order. (b) The Attorney General, in consultation with the heads of executive departments and agencies, shall investigate the activities of the Federal Government over the last 4 years that are inconsistent with the purposes and policies of this order and prepare a report to be submitted to the President, through the Deputy Chief of Staff for Policy, with recommendations for appropriate remedial actions to be taken based on the findings of the report.”

There we go! Was that so hard? This is what the ACLU used to believe before they went the other direction to become a nonprofit enforcer of woke ideology.

Thus is free speech seemingly restored but that is not the end of the story. The plaintiffs should be entitled to a full compensation of all litigation costs, and these should come out of the budgets of the CDC, Department of State, the National Institutes of Health, and any other agency involved in this censorship program.

Is this order enforceable? One can hope but not be certain.