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