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Where does the president get the authority to issue Executive Orders?

December 31, 2010

  With Barack Obama beginning to implement his agenda through decree using agencies such as the FCC and the EPA to implement policies which have failed to pass through the Congress, much has been made around the blogosphere about the possibility that Barack Obama was going to rule by Executive Order over the next two years, thusly bypassing the Congress on all contentious issues that he would not otherwise be able to pass. So I thought that it was about time to ask a simple question: Where does the president get the authority to issue Executive Orders in the first place? There is no mention of this specific power in the constitution, so where does it come from?

  From several sources on the internet I have found that there are two clauses in the constitution–when combined–which have been used as justification for the Executive Order: The first line in Article II, Section 1 states that the “executive Power shall be vested in a President of the United States of America,” while second clause that is referenced in regards to the Executive Power is Article II, Section 3, where it states that the president “shall take Care that the Laws be faithfully executed.”

  I have to be perfectly honest here; I don’t understand how the second clause I mentioned above gives the president the power to do any more than ensure that laws passed by the Congress are properly enforced, although I can see the “executive power” clause to provide some justification for the use of Executive Orders.

  The term “Executive Order” is fairly new; coming into existence somewhere in the early 1900′s but every president since George Washington has used the process to one extent or another. Originally these orders where given by the president to a specific cabinet head or government agency head which would be the specific agency directly effected by the order–which the president has the constitutional right to do, he has the right to direct the employees directly beneath him.

  Like most things governmental, once a program or policy is started it is only a matter of time before it is expanded and that seems to be what has happened to the Executive Order; president’s have been able to implement policy decisions–rather than procedural cabinet inner workings–and while some may be considered honorable that does not mean they were constitutional.

  Abraham Lincoln used what eventually became known as the Executive Order to issue the Emancipation Proclamation, but even he believed that he could only do so using his “war powers,” he understood that the Emancipation Proclamation would not be valid once the war was over and he understood that  a constitutional amendment ending slavery was the only legitimate way to end slavery during peacetime–he didn’t have the power to degree an end to slavery. He also used the power to suspend habeas corpus–again he felt this was a legitimate war power, and let us not forget that FDR also used the Executive Order to intern Japanese Americans during WWII feeling this was legitimate under his war powers.

  Integrating the schools and the armed forces as well as banning federally funded abortions are more examples of what different presidents have used the Executive Order to accomplish, so as you can see, there have been many good policies to come from the Executive Order–as well as some controversial ones.

 So my next question would be–where does this power end if we can assume that this power is constitutional in the first place?

  The obvious answer would be that when the president makes a law using an Executive Order that he has gone too far. This has precedent also; President Truman attempted to place all steel mills under federal control, but the Supreme Court ruled in Youngstown Sheet and Tube Co. vs Sawyer that the order was unconstitutional because it was an attempt by the president to make law. Needless to say, Article I, Section 1 of the constitution specifically gives that right to the Congress.

  It appears to me that the justification for the Executive Order is dubious at best: I can understand the Executive Order being used as it was originally, as the president directing his cabinet what his rules were for the operation of their duties, but it seems as though we have allowed this procedure to progress much further than George Washington as president and the founders when writing the constitution could have ever foreseen. The writers of the constitution wanted to guarantee that no power was consolidated in one branch of government–especially in one man–and they went out of their way to assure that the different branches would provide a check on the others. Clearly their use of the term “executive power” in Article II of the constitution was not meant to imply that a president could use this power to bypass the procedure set up in Article I of the constitution.

  What recourse are we left with if Barack Obama decides to expand the use of the Executive Order even further, and use this power to implement policies while subverting the Congress? I have been able to come up with three possibilities: One; we will have to fight the president all the way to the Supreme Court, but that will take years and we simply do not have that kind of time; Two, the Congress can override the Executive Order, but that will take a 2/3 majority and is highly unlikely; Three, the Congress can vote to defund any law that Barack Obama decrees. This seems to be the most likely way to stop Barack Obama from using the Executive Order to implement by decree the laws of the United States.

  As of this point this is all speculative, but it is well worth watching to see how Barack Obama reacts to the new Congress–and how the new Congress reacts to him if he decides to take this route.    

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36 Comments leave one →
  1. The Georgia yankee permalink
    December 31, 2010 12:55 pm

    Executive orders, as I understand them, apply to the Executive Branch. They’re a clear cans of the boss giving an order. Thus, when President Truman order the military to integrate, he was issuing orders to his subordinates. When he attempted to bring steel mills under federal control, the order went outside the executive branch and had a material impact on private industry, and thus exceeded the President’s authority.

    Remember that the Executive Branch operates for the entire government, and isn’t just the execution and enforcement arm of the Congress. Once important matters of policy have been appropriately defined and articulated by the government, the executive is responsible for carrying out and enforcing that policy. For example, it was the Supreme Court that declared segregation in public schools to be inconsistent with Constitutional principles, but it was the Executive Branch that enforced the Court’s order.

    Without the ability to give orders, how would any boss be able to discharge his responsibilities?

    If you’re looking for an area of Presidential activity of dubious Constitutionality, consider the “signing statements” that commonly accompany Presidential autographs of passed legislation. They started out being rhetorical exercises, often meant to mobilize a particular constituency, but more recently have become carefully worded documents outlining circumstances under which the Executive wouldn’t obey or enforce the legislation. It’s said that President Bush issued over 100 such signing statements, a practice continued under the Obama administration.

    Like

    • January 1, 2011 2:01 am

      GY, I think we are somewhat on the same page here. As you pointed out, the president should have the executive power over his subordinates. I agree with that and that was one of the points that I was trying to make. But if Barack Obama uses the Executive Order in order to create law, that is where I have a problem. As I stated, this is speculative, but worth keeping an eye on.
      I am going to have to do a little research on the signing statements, perhaps that will be the subject of a future post, for they seem to have no basis in the constitution whatsoever.

      Like

  2. December 31, 2010 2:30 pm

    Steve – I am so glad you asked his question.

    I have been wondering this very thing, even under Bush’s reign.

    To me it seems as if it is a loophole (at the very least) that allows the President/government to do what they desire even if it is in complete opposition to ‘we the people’.

    I’m sure that is not always the case, but it definitely seems to have run amock these past 10 years.

    I hope you continue following through on this question because I think it will become one of the most important questions we ask before 2012.

    Like

    • January 1, 2011 2:03 am

      It was an interesting topic to research, and it turns out that it started with George Washington but over the years the power has been expanded. We are going to have to watch closely to see if Obama takes this route.

      Like

  3. December 31, 2010 2:33 pm

    I think it only applies to Federal and State matters not ordering private companies to do something. Democrats got upset with Bush about his use of Executive Orders just as Republicans got upset at Bill Clinton’s use of them. Many were angered when Clinton closed off huge swaths of the desert to oil exploration by making them a national park. Bush created the largest marine refuge in the world in around Hawaii and some people got steamed by that, too.

    I think these EO are something that can be abused but I don’t see them going away.

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    • January 1, 2011 2:05 am

      I didn’t even get into the Bush and Clinton uses of this order in my post, but both were considered controversial by the opposing side. But at least this wasn’t an attempt to bypass the Congress to pass laws by decree. The EO is never going to go away, but we must watch this situation closely to assure it is not abused.

      Like

  4. The Georgia Yankee permalink
    December 31, 2010 5:23 pm

    I think Harrison’s got a good take on the issue of Executive Orders.

    We’re hearing a lot about the will of “we, the people,” but in fact the only official expression of their will is the ballot box, and that’s restricted to the selection of individuals to represent them in various legislatures. Those people attempt to exercise their duties in the best interests of the people, NOT in accordance with what they think their constituents will agree with or support. We all know, for example (or should), that if the will of the people had been observed, President Andrew Johnson would have been removed from office, and the public schools and military would never have been desegregated.

    Every time I hear or read someone ranting about the will of the people, I’m reminded of Edmund G Ross, Senator from Kansas, who voted against conviction in President Johnson’s impeachment trial and responded famously to public calls that he vote in accordance with the wishes of his constituents: “To D.R. Anthony and 1,000 others: I do not recognize your right to demand that I vote either for or against conviction. I have taken an oath to do impartial justice according to the Constitution and laws, and trust that I shall have the courage to vote according to the dictates of my judgment and for the highest good of the country. Signed E.G. Ross.”

    Have a grand New Year!

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  5. December 31, 2010 7:53 pm

    I would add a forth option, and option that would fast track any executive order to the SCOTUS; that States refuse to comply and sue on the constitutionality of the order. This would force the hands of the court to address the issue immediately. Great post Steve. You are bringing up a topic that needs an in-depth look.

    Like

    • December 31, 2010 8:30 pm

      great idea John. Love that!

      Like

    • January 1, 2011 2:09 am

      Now that is an option that I hadn’t thought about, but you raise an interesting point. We have seen with Arizona, Virginia, and Texas the beginning of a state rejection of the federal govenrment and in the case of Virginia we have already had part of ObamaCare ruled unconstitutional. Perhaps a political rebellion by the states is in order!

      Like

  6. bunkerville permalink
    December 31, 2010 8:42 pm

    It appears that even thought the Courts rule against him, he pays no heed such as oil drilling. The Court ruled he couldn’t just shut them down, but it was worthless in reversing him, so I don’t know where we can go. It is about as close to a dictatorship as you can get IMHO.

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    • January 1, 2011 2:11 am

      Good point, he ignored the court ruling that said he couldn’t shut down oil drilling and the FCC is ignoring a court ruling that said they couldn’t regulate the internet. If the Obama regime is going to ignore the orders of the court there is no limit to what they can do.

      Like

  7. December 31, 2010 8:51 pm

    What Obama is doing is defining the policies himself, and then enforcing them. In other words, making up his own rules independent of the congress. Republicans won’t contest him with any heart because they want the same power when they’re in the White House. AKA business as usual. that’s where we come in. Any EO can be challenged. For those that don’t have the stomach to do that, we need to remind them that they’re replaceable.

    Like

    • January 1, 2011 2:14 am

      We need to pay close attention and any Republican who does not stand up to do something about this needs to be voted out of office. We are reaching critical mass in this country and we cannot afford to have people sit by and do nothing simply because they want the same power when they are in charge. This has to stop now!

      Like

  8. December 31, 2010 9:53 pm

    As I look at this, I’m thinking that the administration will do as much as they can with regulation and executive orders. The Congress can undo them, but the administration will do so many, that the Congress will get bogged down with the bulk. Just conjecture on my part, but it might just happen.

    Like

    • January 1, 2011 2:16 am

      I am not sure the Congress can undo them, unless the defund them, because of the 2/3 majority it will take. I am afraid that Obama will rule by decree and while the courts may eventually rule against him, the damage will already be done by that time.

      Like

  9. January 1, 2011 8:00 am

    Great post, Steve. I didn’t realize these orders had been in place since George Washington. Even with me being a history major, I didn’t know the Emancipation Proclamation was issued by executive order.

    Some of the comments have asked a very good question. How do we fight an order that is unconstitutional or in direct violation of the courts when the President seems more than willing to ignore both?

    Like

    • January 1, 2011 9:09 am

      Thanks Larry. Apparently they were around from the beginning but they were not documented until the early 1900s when they were named Executive Orders and numbered retroactively starting with the Lincoln administration.

      Like

  10. The Georgia Yankee permalink
    January 1, 2011 12:36 pm

    Presidential authority is broad. I think it was President Reagan who first issued Executive Orders prohibiting any federal hospital from performing abortions, for example. Did he make new law, or simply issue guidance to federal facilities.

    When the Congress passes legislation, it’s usually pretty broad, and includes provisions for the Executive to promulgate regulations to carry out the legislation. The regulations have the force of law. So if the Congress passes Medicare legislation to provide health insurance for retired Americans, and one of the ensuing regulations addresses end-of-life issues, has new law really been created? Or is it the intent of some here that Congress micro-manage each and every issue that comes before it, relieving the Executive Branch of any of the discretionary authority it was elected to exercise by we the people?

    Happy New Year, y’all!

    Impoundment of funds is another related area. What if the Congress appropriates a billion dollars for abortions in federal hospitals, but the President refuses to release the funds (i.e., issues an EO to the Treasury or whomever not to cut any checks for that purpose).

    Just because one particular majority or another is thwarted doesn’t automatically make an action unconstitutional. A perfect example is the US Senate, where even if a group of 41 Senators cannot themselves pass legislation, they can effectively block legislation approved by the majority.

    Like

  11. Deb permalink
    January 1, 2011 6:29 pm

    OK, I have a headache. I do appreciate your passion about this, but I have to be a little silly. Look at the bright side, “he’s the Wiz, and nobody beats him!”

    Like

  12. January 2, 2011 3:02 pm

    You raise an interesting issue. When do government officials, including Supreme Court Justices, exceed their authority? When do their actions constitute malfeasance in office? How does one challenge their apparent over reaching? Sorry. All I have are questions.

    Like

    • January 2, 2011 8:09 pm

      I wish I had the answers to you questions but the line has been blurred and I am afraid we have nobody to blame but ourselves because of our indifference over the years.

      Like

  13. January 3, 2011 12:17 am

    I agree that defunding is about all we can do about that which has already been done. However, I think we should take everything to SCOTUS, while we are defunding and set a precedent that cannot be abused in the future.

    I don’t think there is any real constitutional support for a Presidential executive order that acts as law, even if it’s not – tradition perhaps? To make a law, Congress must grant him the power to do so. I believe his executive power lies in vetoes, only. Once a law becomes law, he is tasked with enforcing it. Our borders are the best example of how he and several presidents have failed – purposefully.

    Some research I was doing today showed that the auto bailouts were not constitutional. Congress tried to pass legislation to give him the power to do what he did, but the legislation failed. He did it anyway.

    This Congress has abdicated so much to this president that the problem has grown immensely – if not in the number of EO’s,then the intent of them. It’s much like the Czars, which I know most all presidents have had, even if we did not refer to them as a “Czar,” but as Issa said today, (paraphrasing) when Czars are “unelected but trying to run things in government,” it’s time to do something about it.

    Great subject, research and conversation.

    Like

    • January 4, 2011 6:58 am

      Thanks for the compliment! I agree that all of these issue need to be challenged to the Supreme Court, de-funding is a short term answer that will give us time to challenge these issue or repeal them if necessary.

      Like

  14. themadjewess permalink
    January 4, 2011 9:58 am

    This terrible, evil, wicked person will just keep ruling with this type over-power, because we have really done nothing to stop it.

    Like

    • January 4, 2011 9:20 pm

      That is a good point but hopefully that is about to change with the new Congress!

      Like

  15. desertdave permalink
    March 8, 2011 6:35 pm

    If you want to know the true horror and outrageousnes of executive orders look up Bush’s executive orders #’s 13303,13315,13350,13364,13422,13438. Also note that executive orders carry on from administration to administration without usually being repealed by the next president. You can all find more info on the true nightmare awaiting us at Infowars.com

    Like

  16. LizardLips permalink
    November 1, 2011 7:26 pm

    If not now it’ll soon be abundantly clear why the founders, in their infinite wisdom, fought for the separation of powers in our republic, lest we become what cost us so dearly to secede from; despotism.

    Like

    • November 1, 2011 7:53 pm

      Exactly!

      Like

  17. Stantheman13 permalink
    February 7, 2012 12:38 am

    Steve,
    Thanks for researching this topic. Very interesting. I’m not sure I believe in these at all except as orders from a boss to his employees. Out of curiosity, if these executive orders are not mentioned in the Constitution then where did you get the fact that it would take a 2/3 majority to override one?

    Like

    • February 7, 2012 6:54 am

      The Congress would have to vote to defund the order but the president would veto the defunding and it would then take a 2/3 majority to override the veto.

      Like

  18. Veronica Daze permalink
    January 29, 2014 4:58 am

    They have been creating Executive Orders since the first President but they weren’t called by that name. Other Presidents can revoke them as did Obama in regard to one that George W. Bush made concerning viewing Presidential papers. In 1999, they took away the legislative veto from Congress.

    “Congress was able to overturn an executive order by passing legislation in conflict with it during the period of 1939 to 1983 until the Supreme Court ruled in Immigration and Naturalization Service v. Chadha that Congress may not promulgate a statute granting to itself a legislative veto over actions of the executive branch inconsistent with the bicameralism principle and Presentment Clause of the United States Constitution.”

    Therefore there is room for certain Executive orders since much of the ideas about this area is sketchy and it will take the Supreme Court or another President to overturn them even though “the Congress may override a veto with a two-thirds majority to end an executive order. It has been argued that a Congressional override of an executive order is a nearly impossible event due to the super majority vote required and the fact that such a vote leaves individual lawmakers very vulnerable to political criticism.”

    Like

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