Historically, Presidents have issued and used Executive Orders to clarify and enforce previously enacted Congressional legislation to apply within the Executive Branch, and to apply not only to Executive Branch employees but to Executive Branch contractors as well. By their very nature, Executive Orders do not apply to the other branches of the federal government or the public at large. Also, no President has ever used Executive Orders to nullify or countermand existing legislation, because doing so would violate the Constitution’s “Take care” clause (Article II. Section 3), i.e., “that the laws be faithfully executed.” Under the Constitution, the President is in no way authorized to negate, nullify, or weaken existing legislation already in force. And yet, in at least two of President Biden’s recent spate of Executive Orders, that seems to be precisely the case.
The first of these involves Title IX of the federal civil rights law passed as part of the Education Amendments of 1972. It protects people from discrimination based on sex in education programs or activities that receive Federal financial assistance. Under Title IX, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program including state and local educational agencies or activity receiving Federal financial assistance.” Such programs and activities must operate in a nondiscriminatory manner. When boys were boys and girls were girls, this was never a major problem. But with the advent of social movements that blur the difference between the sexes, an increasing number of States, and now colleges (I.e., any educational institution or program that receives or even qualifies for federal financial assistance) must treat any student who wishes to engage in sports as being of the sex that the student has chosen to identify as or with. The failure on the part of governing bodies to deal openly and honestly with the situation has ruined many high school girls sports programs, and has been swept “under the rug” with respect to many collegiate women’s sports programs.