Can a President's Executive Order contravene legislation passed by Congress?

[Boyo Jim]

I would have thought not, but acording to this LA Times article, (http://story.news.yahoo.com/news?tmpl=story&cid=2026&e=5&u=/latimests/20040613/ts_latimes/recordstrickleoutofreaganlibrary) it has been done.

Academics are more worried about an executive order issued by President Bush in 2001 that they say could indefinitely shield from public view, or at least further delay the release of, some of the late president's most sensitive documents.


The order bars archivists from releasing any former president's records without the approval of the sitting president and the former president, or a representative. Currently being challenged in court, the order overrides the Presidential Records Act of 1978, which established that a president's papers were not private property and set a 12-year limit on keeping communications between a president and his advisors secret.

So far this has affected only a very small number of papers, a total of only 78 pages. But on what basis does he have the power to do this?

Also:
Under the Bush order, anyone named as Reagan's representative can continue to invoke executive privilege after his death.

So anybody, from a file clerk to the National Archivist, that the President designates can determine what papers that punlic is allowed to see? Forever?

Has anybody seen anything else about the Executive Order and the rationale behind it?

[friedo]

In short, no, an executive order cannot countermand existing legislation, nor can one create new legislation.

I don't know anything about the particular order in question, but if the article is accurate, then I am confident that the courts will dispense with it in short order.

An important Supreme Court case, which I am too lazy to look up at the moment, involved an executive order attempting to nationalize the steel industry. The SCOTUS ruled that it was unconstitutional because it attempted to create legislation instead of executing existing legislation.

[Reeder]

While not legislation, an executive order is law unless overturned by congress.

[friedo]

Ah, here it is: Youngstown v. Sawyer, 343 U.S. 579 (1952).


While not legislation, an executive order is law unless overturned by congress.


An executive order may only be issued pursuant to the executive power granted the President by Congress. An order that oversteps those bounds can (and has been) overturned by the courts.

[Reeder]

Ah, here it is: Youngstown v. Sawyer, 343 U.S. 579 (1952).



An executive order may only be issued pursuant to the executive power granted the President by Congress. An order that oversteps those bounds can (and has been) overturned by the courts.


Congress grants the president powers??

I always thought the Constitutution did.

Am I wrong?

[friedo]

Congress grants the president powers??

I always thought the Constitutution did.

Am I wrong?

They both do. The Constitution makes the President Commander and Chief of the armed forces, for example. On the other hand, Congress makes the President the boss of the Department of Homeland Security. In the latter case, executive orders must conform to the legislation establishing that department. For example, the President could not lawfully order the DHS to engage in a giant circle jerk in the oval office. That's outside of their jurisdiction.

[Reeder]

Using your example..

You do know the Office of Homeland Security was created by executive order and not by legislation..right? Yet it carries the full weight just as if it had been created by congress.


http://www.dhs.gov/dhspublic/display?theme=59&content=409

[friedo]

Using your example..

You do know the Office of Homeland Security was created by executive order and not by legislation..right? Yet it carries the full weight just as if it had been created by congress.


Not quite. The Office of Homeland Security was indeed created by EO 13228 in October of 2001. The President can create such offices within the executive branch, but these are very different from cabinet departments, and have very limited power. The Department of Homeland Security was established by Congress about a year later by the Homeland Security Act, and Tom Ridge was then appointed as a real cabinet secretary. The OHS was a temporary solution put in place while Congress created the legislation to establish the new department. AFAIK, it no longer exists.

[Reeder]

Thank you for enlightening me. I love to learn!

[RealityChuck]

For example, the President could not lawfully order the DHS to engage in a giant circle jerk in the oval office. That's outside of their jurisdiction.I'm confused. Isn't that what DHS is usually doing? :D

[Captain Amazing]

While not legislation, an executive order is law unless overturned by congress.

Or a later executive order.

[Boyo Jim]

Oh man, no circle jerks? I thought that's what code red meant.

[Otto]

Often (usually?) the president will include within the text of the executive order the legislation under which he is issuing the order. Otherwise he'll include language along the lines of "By the authority vested in me by the Constitution of the United States...."

[Boyo Jim]

While not legislation, an executive order is law unless overturned by congress.

But apparently, if the OP linked article is correct, rather the opposite happened. Congress established a law, and the Executive Order seems to replace it. Or Bush wants it to replace the law.

I'm wondering if something is missing from the equation here. I know Bush isn't exactly a rocket scientist, but I have a hard time imagining he would produce this order with his advisors knowing that it's invalid on its face. Especially over such a relatively minor thing.

[Boyo Jim]

Here is Executive Order #13233, the one in question. (http://www.fas.org/sgp/news/2001/11/eo-pra.html)
It was signed in Novemberm 2001.

Here is a letter (http://www.archivists.org/statements/stephenhorn.asp) expressing the dismay of the Society of American Archivists, written less than a week later.

Apparently this thing has held up for nearly 3 years, though obviously there have been some higher priotity things come along.

Here is the relevant legislation (http://www4.law.cornell.edu/uscode/44/2201.html), 44 U.S.C. 2201-2207.

I'm going to look through these and see what what I can see. I'd appreciate any comments that others might have.