Executive Directives Unconstitutional

Called Unto Liberty, 20th Century Sermons, J. Reuben Clark Jr.

In violation of the fundamental concept of the Constitution that there are three mutually independent branches of government m the legislative, judicial, and executive—neither of which may usurp or have granted to it the power to intrude upon the functions of the other, we have seen grow up, under this destructive influence I have named, the theory and practice that the executive branch may in fact legislate. Many of these legislative-like enactments are dubbed “directives,” a new and meaningless term in our constitutional government. Unless they are legal Executive Orders, they have no legal force. However sound such enactments may be under the principles and practices of the Civil Law—with which the leadership of the communistic publicists are familiar and in which they are probably trained—they are outside our constitutional law and procedure. Behind them are no popular urges—indeed, they not infrequently fly in the face of the peoples desire; they are made without public notice or discussion, in violation of established law-making procedure; they are not made by the representatives of the people with a responsibility running back to the people; on the con trary, they are made by young, frequently alien, bureaucrats, with boyish outlooks and frequently with no practical experience,—youths owing no loyalty or responsibility to anyone but their immediate petty official superior (unless there be here amongst us an inner secret State, as some have charged) and hardly a one of whom has been or could be elected to any office, and almost surely not to the offices they hold, by the vote of the people.

However, these “directives” involve more than the legislative usurpation. The units that frame them likewise enforce them,—thus becoming both legislature and executive. Furthermore, in cases of dispute, they not infrequently try, condemn, and pronounce judgment for violations, thus acting as a court in judging their own enactments; and finally, having made the law, and judged the law, and imposed the penalty, they act as sheriff to carry out the sentence. This combines all the elements of government into one. This is tyranny in its most complete form, however beneficient it may happen temporarily to be in fact. It was Thomas Jefferson who said: “What has destroyed the liberty and rights of man in every government which has ever existed under the sun? The generalizing and consolidation of all cares in one body.”  . . .

Thus, and speaking in general terms, the Federal Government has reached down and touched the individual lives of the citizens in a multitude of matters which for a century and a half were held to be untouchable by that Government under those constitutional provisions which declared that the Federal Government is a government of delegated powers, and that unless powers are expressly given they are reserved by the people who grant the powers—either to themselves or to their State Governments. Any proverbial school boy knows that the exercise by the Federal Government of a power not delegated to it by the people, is plain usurpation; so also he knows that any exercise by one department of the Federal Government of any power not expressly granted to it is a usurpation, whether that power be not granted at all or whether the people have in their Constitution granted that power to another department of the Government. These are merest commonplaces in constitutional law, but they are basic principles which are suffering daily violations.

Unless these usurpations are stopped, social, economic, and governmental chaos will come. There are those who believe that the destructive influences wish chaos because they believe that out of it they can most easily build their projected communistic state here in America.


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Source: J. Reuben Clark Jr., October 7, 1943, p. J. Reuben Clark Jr. (1871–1961), served as a mem­ber of the First Pres­i­dency of The Church of Jesus Christ of Latter-day Saints, 1931–1961. Prior to his full-time church ser­vice he served as assis­tant solic­i­tor to the State Depart­ment, served in the Attor­ney General’s office, served as Under Sec­re­tary of State, was the author of the clas­sic study the “Clark Mem­o­ran­dum on the Mon­roe Doc­trine,” and served as U.S. Ambas­sador to Mex­ico. Among those who knew his work best, J. Reuben Clark was rec­og­nized as the fore­most con­sti­tu­tional scholar of the 20th Century.