David Boaz
Newspaper headlines proclaim that President Biden has issued a “massive, sweeping, wide‐ranging” executive order on artificial intelligence. And no one seems to be saying that whatever the content of the order is, “massive, sweeping, wide‐ranging” regulations should not be issued by one man.
President Biden, members of Congress, and the judiciary should take a look at the White House’s own website, where they would read: “Under Article II of the Constitution, the President is responsible for the execution and enforcement of the laws created by Congress.” Not to make the laws, but to execute and enforce them. If AI needs government attention, it should come from Congress.
Biden is not the first president to believe that his office was invested with kingly powers. Both President George W. Bush and President Barack Obama used executive orders to grant themselves extraordinary powers to deal with terrorism. Lawmaking by the president, through executive orders, is a clear usurpation of both the legislative powers granted to Congress and the powers reserved to the states.
Clinton aide Paul Begala once boasted: “Stroke of the pen, law of the land. Kind of cool.” President Obama declared: “We’re not just going to be waiting for legislation.… I’ve got a pen, and I’ve got a phone, and I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward.” President Donald Trump upped the ante: “I have an Article II, where I have the right to do whatever I want as president.”
One of the great concerns of the Founders was to rein in executive power. Thus they wrote a Constitution to divide and limit the powers of all elected officials. But they thought that each branch would be jealous of its own authority and would not tolerate a usurpation of its power by the other branches. Somehow Congress and the courts have lost their taste for conflict with the executive.
No matter what agenda the president seeks to impose by executive order, Congress should stop him. The body to which the Constitution delegates “all legislative powers herein granted” must assert its authority. In a constitutional republic, one man should not have kingly powers — and the Constitution doesn’t grant them to him.