By Order of the Executive

With any administration, we tend to hear from time to time the mention of Executive Orders being issued by the President.  Even in his last State of the Union speech, President Obama stated that he would use Executive Orders to move things forward where he could when Congress could not or would not act.  But what are Executive Orders and what can a President do with them?

No where in the US Constitution does it mention Executive Orders.  The most basic definition is that they are orders to help officers and agencies of the Executive Branch enforce the laws that are passed by Congress.

“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.” Article I, Section 1

The President cannot use Executive Orders to legislate though under Article II, Section 3, Clause 2, he is allowed to make suggestions to the Congress on legislation.  Under Clause 5 of the same Article and Section, the President must “take care that the laws be faithfully executed” that are passed by Congress.

All Presidents dating back to George Washington have issued orders that can be counted as Executive Orders even though they didn’t officially have the name.  Washington’s first one stated that the US was remaining neutral in the war between France and Great Britain.  The numbering system we use today when referring to a specific order was not done until later, though they have been retroactively back-numbered to an order issued by President Abraham Lincoln in 1862.  Since a Supreme Court decision in 1952, Presidents have also made sure to cite which specific laws they are acting under when they are issuing the Executive Order.

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Though the President cannot use Executive Orders to make laws, the orders can still have a very wide-range effect.  President Harry Truman issued an Executive Order to integrate the armed forces, and President Dwight Eisenhower issued one to integrate public schools.  Executive Order #9066 was issued by President Franklin Roosevelt for the relocation of Japanese-Americans and German-Americans living in war zones during World War II.  He claimed it was within his power under his military authority.

Lately, there has been criticism from Republicans as President Obama has signed several Executive Orders that delay certain parts of the Affordable Care Act (ACA) even though the law makes no specific mention of the President having that ability.  Their claim is that the President is “cherry-picking” which part of the law to obey and which not to.  Executive Orders cannot violate the laws passed by Congress or the responsibilities delegated to the Executive Branch.

But with no clear constitutional authority, where is the line drawn for an Executive Order?  The Supreme Court ruled in Humphrey’s Executor v. United States that the President must obey the law.  He/She has no authority under the Constitution to suspend the enforcement of the law.  By this definition, the President’s actions described above in regard to the ACA are not valid without congressional approval.

So when any President states that he/she is going to issue an Executive Order to do something, one must not blink.  We must make sure that it falls within the responsibility of the President in executing laws passed by Congress.

“Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”
Justice Robert H. Jackson

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4 Responses to By Order of the Executive

  1. Earline Fry says:

    An executive order is like a law, except that it doesn’t have to be approved by Congress, it instead must be overturned by Congress creating a law that is contrary. The president can veto that law, requiring congress to get a 2/3rds majority to override the veto. What this means, is that executive orders can put an incredible amount of power in the hands of one person, because unlike most laws which need a simple (51%) majority to pass, once an executive order is made by the President, a lot of legal red tape must be cut through to overturn it, AND there needs to be a two thirds (67%) majority to un-make the law. Some executive orders in the history of the U.S. have been good, and some bad, but only two have ever been overturned.

    • James S. says:

      Actually, you are incorrect. The Executive Branch (the President) cannot make laws only enforce them. Only the Legislative Branch (Congress) can make laws. Presidents are only supposed to use Executive Orders to help them enforce the laws passed by Congress. Yes, Congress can write a law the reverses an Executive Order and the courts can throw it out, as well, if it is found unconstitutional. Also with an Executive Order, the next President can write another one simply reversing it. The overall point is that Executive Orders are not like a law. They aren’t supposed to be close to it. They are to be used solely for enforcement of the laws. And most Presidents now actually write what law they are enforcing when they write them up so there is no confusion.

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