The Scope and Limitations of Executive Orders

[IceQube]

Are there limits to what the President can order?

I know that executive orders can be struck down by the Supreme Court … but theoretically, the President can order anything, right? Including pizza :smack:?

[friedo]

Executive Orders are issued pursuant to current statute or constitutional powers. The President’s ability to order the executive branch to do stuff is limited to what Congress says his powers are. (Outside of a few areas defined by the Constitution itself, such as making the President the commander-in-chief of the armed forces.)

Canonical example: in Youngstown vs. Sawyer, the Supreme Court ruled that Truman’s seizure and nationalization of steel mills during the Korean War was illegal because there was no law giving the President the power to seize property in such a manner.

[Polycarp]

@friedo

Executive Orders are issued pursuant to current statute or constitutional powers. The President’s ability to order the executive branch to do stuff is limited to what Congress says his powers are. (Outside of a few areas defined by the Constitution itself, such as making the President the commander-in-chief of the armed forces.)

Canonical example: in Youngstown vs. Sawyer, the Supreme Court ruled that Truman’s seizure and nationalization of steel mills during the Korean War was illegal because there was no law giving the President the power to seize property in such a manner.

Friedo summaries Hugo Black’s absolutist majority opinion in Youngstown v. Sawyer very well. But Youngstown is a funny case in that the one thing the majority agreed on is that Truman did not have power to seize the steel mills. Black’s reasoning was joined only by Douglas. The other three justices in the majority wrote concurrences that disagree in large part with Black. The rather murky takeaway on executive power most commonly cited is Justice Robert Jackson’s concurring opinion:

@R. Jackson

When the President acts pursuant to an express or implied authorization of Congress, the President’s authority is at its greatest.
When the President acts in the absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone in which he and Congress may have concurrent authority. When this is the case, the test depends on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
When the President takes measures incompatible with the expressed or implied will of Congress, the authority of the President is at its lowest.

In summary, the President apparently may act by executive order:
a. Whenever authorized explicitly or implicitly by his Constitutional grant of powers;
b. Whenever authorized by Congressional statute;
c. Whenever in his best judgment the common defense or general welfare of the country requires resolute action prior to a time when Congress can be assembled and authorize such action – presuming Congress has not forbidden such action, and subject to Congress second-guessing his action.

That probably needs a whole lot of nuancing, but as a first-cut summary of present law, i think it’s fairly accurate.

[IceQube]

Ah. Sounds like John Locke. The executive is delegated a certain amount of prerogative which she may exercise for the general good, and especially when the legislature (Congress) cannot meet. And there are limitations to executive power, depending on whom you listen to.

[UltraVires]

@IceQube

Ah. Sounds like John Locke. The executive is delegated a certain amount of prerogative which she may exercise for the general good, and especially when the legislature (Congress) cannot meet. And there are limitations to executive power, depending on whom you listen to.

Right, but as Polycarp noted in his link to Justice Jackson’s opinion, the Court views these kinds of executive orders with much skepticism. The Prez better have a really damned good reason for this order or it will be struck down.

OTOH, when given a positive grant of power, the scale goes the other way and the executive order is generally accepted unless shown otherwise (think an EPA regulation or the like where Congress has told the executive: make rules you think are proper)

[friedo]

@jtgain

Right, but as Polycarp noted in his link to Justice Jackson’s opinion, the Court views these kinds of executive orders with much skepticism. The Prez better have a really damned good reason for this order or it will be struck down.

This is why, since Youngstown, Presidents are always very careful to cite the specific statute(s) under which they are giving orders within the text of the order itself.

[Leo_Bloom]

I’m pondering what “contemporary imponderables” are.

Sooner or later this thread, while still GQ, will name the elephant in the room.