In late November, Governor Josh Shapiro directed the state Department of Transportation to move $153 million of federal highway capital funds to the Southeastern Pennsylvania Transportation Authority (SEPTA). The transfer of funds from road projects to public transit aid is meant to avoid SEPTA’s announced service cuts and fare increases. This transfer will divert funds from seven highway projects across the state to benefit riders of SEPTA in southeastern Pennsylvania.

Obviously, those who support public transit will be pleased with the governor’s action, and those who looked forward to the benefits of the seven highway projects (that will lose funding) will not be pleased. There is, however, a more significant issue underneath the governor’s action that should concern everyone: the shifting of law making from the legislature to the executive. And this is true on both the federal and state levels.  

The consequence of this shifting is of enormous significance in a democratic society. Unfortunately, most seem to be totally unaware of it happening and of its consequences. It amounts to an erosion of our constitutional separation of powers and leads to the equivalent of a monarchy.

The expenditure of government funds is a legislative decision. Whether $153 million should be spent on highways or on public transit is a decision that should be made by the legislature. But in this case the decision is being made by the executive. Under present law, that seems to be perfectly legal, because Congress has, by statute, allowed that to happen. The question that I would like to raise is whether that law is constitutional.

My question goes way beyond this particular situation. It is at the heart of much that is happening in our nation at the present time. President Biden has done much by executive orders, and President-Elect Trump has announced many things that he plans to do on Day One, and in the days to follow. Much of that he will probably do by executive order. So much of what has been happening in recent years is by executive orders that it is almost assumed that it is okay. Very few have asked if that is constitutional. 

Perhaps it is time to ask that question.

The US Constitution does not mention executive orders. It does, however, quite clearly separate the powers of government into three interdependent branches. Article I, Section 1 provides that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The Constitution does not grant any legislative power to the Executive. The President’s authority, as Executive, is not to make the laws, but to take care that they are faithfully executed.

Of course, not every phrase in the Constitution is to be taken literally. The power given to Congress to “coin money” surely did not mean that the members of Congress would themselves be stamping out pennies. Congress could, by law, delegate that function to subordinate government officials. Congress must be able to delegate rule making functions to executive offices. Those rules, however, must be within the scope of the authority granted by statute.

But can Congress delegate to the president the authority to make whatever laws he deems appropriate? Should we care whether our laws are made by Congress or by the president? When we accept without question every presidential executive order we are essentially saying that we don’t care. I submit that we should care.

When I was teaching Administrative Law at Villanova University’s law school I would ask the students how they would feel if, during a trial at which they represented one of the parties, the judge were to say “Counsel, I need to run an errand, but you may continue as I am delegating my authority as judge to my clerk.” I was essentially asking whether it was okay for a government official to delegate his authority to someone else. I doubt that any reasonable person would think it was okay. Isn’t choosing who gets to exercise government authority the reason we have elections? Isn’t the reason that we choose to vote for X rather than Y because we care who gets to exercise the power of a government office?  

It should be obvious, however, that legislatures must be permitted to delegate some law making authority to executives. Those of us who live in northern regions that experience snow in the winter have, no doubt, seen signs saying that snow tires or chains are necessary during snow emergencies. Obviously, no legislature could determine whether to change the law from not needing snow tires or chains to needing them every time it snowed. The authority to make that decision can be delegated to an executive official.  

Broad authority to make law can be delegated to an executive official so long as the essential policy is established by the legislature. But the executive’s authority should be confined within some ascertainable borders. Otherwise, it is the executive who is making the law and not the legislature. And that is a serious problem for a representative democracy.

Howard Lurie is Emeritus Professor of Law, Charles. Widger School of Law, Villanova University