The prez has made two executive orders in the last week or so, and it made me wonder: what is the constitutionality of the executive order? This has nothing to do with whether or not I like the prez, I just don’t get how a president can just run around and make laws out of nowhere. I remember about a year ago he signed an order that ratified a treaty which the Senate did not. How was this legal?
“I hear the mermaids singing, each to each. I do not think that they will sing to me.” -T.S. Eliot
Well, these guys certainly believe there is no constitutional provision for executive orders, so this may be a biased source, but it is still worth taking a look at.
http://www.executiveorders.org/
Easy one-step assembly instructions.
Pour Beer A in Uncle B.
Obviously, the current President has little use for the Constitution.
Executive orders aren’t supposed to be laws, they are supposed to enforce and interpret laws. The problem is, they are written down, so people confuse them with laws. If it were just a bunch of phone calls explaining the way the President wanted some executive agency to spend its funds or use its personnel, no one would get upset.
A good executive order should cite the law from whence it derives its authority. An example: http://www.disastercenter.com/laworder/11490.htm
Granted, some people say executive orders are laws, but I just don’t buy it. EOs bind government officials; laws bind ordinary citizens. It is always stated, quite blandly, that executive orders are just like laws and can be used to suspend the constitution. I debunk that notion, at least as it applies to the Federal Emergency Management Agency, here: http://web4.integraonline.com/~bbroadside/Demystifying_FEMA.html
I suppose the main question I have for critics of executive orders is, what exactly is the President supposed to do for those four years? Vetoing laws, pardoning criminals, and giving Congress opinions from time to time aren’t really worth a whole branch of government.
As to the executiveorders.org site, they make a lot of the same claims I’ve seen on other sites. They claim:
They make this claim without quoting said Executive Order. Why wouldn’t they just cite the portion of the EO which says this? Because the EO doesn’t say this. Here’s the text of the order: http://www.disastercenter.com/laworder/12919.htm
Anyway, I’m growing tired of these urban legends. They are thick on the ground, so much so that perhaps we need to recognize a new category of meme: the political legend. I’m not going to go poring through stacks of Federal memos trying to find where the unconstitutionality is just because some conspiracy theorist is too lazy to come up with a cite of their own. I can’t figure out why so many people seem to think EOs are unique to the Clinton administration. “Hey! Clinton’s new Executive Order directs the armed forces to do something! Who died and made him him “commander-in-chief” of the armed forces?”
Yawn.
Well, the Constitution is pretty succinct in delineating the powers of the President and the Exectutive Branch.
I think our current President has found other ways to occupy himself ;).
If we define a law as rules of conduct established and enforced by the authority then, clearly, EOs ARE laws. Even a casual reading of the Constitution reveals that the President is powerless to make laws of any kind, therefore executive orders are not only an oxymoron, but blatantly unconstitutional. Unless those orders are “Pizza with all the toppings. . .and hurry!” or “Ms. Wheatherspoon, please bring my finest cuban cigar in here ASAP.”
Hell is Other People.
Well I know they’re not unique to his administration, but things such as requiring manufacturers of automobiles to lower emissions from their products, declaring a certain amount of land off-limits to private businesses, and signing into law a treaty that the Congress rejected (I believe it was some sort of nuclear weapons test ban last year or the year before, but I could be wrong) all seem to have a shaky Constitutional background. I realize that things like the military require an EO, but can orders like those listed above overtake the authority of the Congress? I mean, if all they do is pass laws that are vetoed and make a budget that never gets through, it’s a pretty useless branch of government, huh? 
“I hear the mermaids singing, each to each. I do not think that they will sing to me.” -T.S. Eliot
LongHrn99
You raise intriguing possibilities, but I still don’t really know what I’m supposed to do. I just imagine that if I were to take the time to look into these things, I would find the President wasn’t making laws at all. Executive Orders usually cite the law they are written to enforce (I mean, all the ones I’ve seen do, but I haven’t seen them all). I don’t really know what about the signing treaty into law thing. Perhaps the President ordered the Department of Defense to quit doing stuff that ran against the spirt of some unratified treaty. I’d need the cite to evaluate it.
Enforcement usually requires some interpretation, just ask any cop. If someone disagrees with the interpretation, they have to take it to the courts or put up with it.
The law might say something like “No person shall manufacture a motor vehicle which shall produce ecologically damaging amounts of carbon monoxide.” The law might go on to define “vehicle”, “person”, “ecologically”, and “carbon monoxide” and give the executive branch (President, EPA Administrator, whoever) authority to do the tests as to what is ecologically damaging. Is the law vague? Yes. Is the law too vague? It’s a judgement call, but Congress didn’t seem to think so when it passed the law. Is there something unconstitutional about the President saying, “I find that emissions of 12 or more angstrom-coulombs per light-year to be excessive based on EPA studies”? Well I guess you already know my opinion about that.
Sake Samurai
I know you intended the adultery reference in jest, but I think it’s pretty telling that whenever something Clinton does is called into Constitutional question, someone has to mention that he’s a philanderer.
“Rules of conduct established and enforced by authority” is a pretty broad definition. Maybe the President shouldn’t have the power to order bureaucrats around. Maybe the real problem is, American bureaucracy is overly responsive to elected officials. Maybe we need to isolate government officials from outside pressure, allowing each individual civil servant to intepret the law as he or she sees fit.
How specific do you want the laws to be? Do you want the U.S. Code to be as long as the Code of Federal Regulations? Or do you just want the courts to interpret the laws on a case by case basis? It worked for Medieval Britain, although I think their society might have been less complex than ours. Sure, maybe you want fewer regulations, but that’s a scope of government question. Executive Orders can strike down regulations just as easily as they can create them.
Good grief.
:::adopting Ukelele Ike voice::: It’s too bad we dropped civics from the curriculum! :::dropping Uke voice:::
No, executive orders are not laws. But they are law. Important difference.
Suppose you get sued in Federal court, and lose the case. The Judge issues a court order instructing you to do thus and so. You turn to him and say, “You’re not Congress, so you can’t tell me what to do. Bite me!” Guess where you’ll be spending the next 30 days?
The Pres. is head of the Executive Branch. He has the affirmative constitutional duty to ensure that the U.S. laws be “faithfully carried out.” If in doing so he finds it necessary to decree something, he issues an Executive Order to do so. Just as constitutional as a writ of habeas corpus. No, he can’t produce a statute; that takes Congress. Nor can he issue any old Executive Order he feels like; he has to hang it on “the Constitution, or the laws and treaties made under it.” But if he’s crossed that bridge successfully, his EOs are just as much law as P.L. 103-8 or 18 U.S.R. 392.
Hey Polycarp (and everyone else) what do you think would be the effect of that provision of H.R. 2655, which would “Prohibit a presidential executive order from having the effect of law”? I tried to figure it out, but I couldn’t.
BTW, regarding the signing of treaties: I was under the impression that every treaty was signed first by the current president and then sent to the Senate for ratification. That is not a usurpation of power, it is the standard protocol.
The Constitution simply says that the president is authorized to “make Treaties, provided two thirds of the senators present concur.” A signed but not ratified treaty simply has no force of law.
Tom~
Sorry, Tom, I forgot to elaborate on that. I am working from memory on something I heard on the radio last year, so if I’m wrong, I’ll know why. IIRC, the Senate had not voted on the bill, but since the majority were Republicans (who had publicly rejected the treaty), Clinton bypassed the Senatorial process and EOed the treaty. I do not recall if the courts did anything with it.
“I hear the mermaids singing, each to each. I do not think that they will sing to me.” -T.S. Eliot
To be really technical, the Senate does not ratify treaties. What it does is “advise and consent” to them. If 2/3 of the Senate says that the treaty is OK, the President and the other signatories exchanges “instruments of ratification.”
I’m no constitutional lawyer, but if my understanding is correct (of course it is!), an important point is being hinted at, but needs to be explained. TPOTUS cannot usurp power from the Congress through executive orders. What he does is execise power Congress delagates to him through the laws they write. There is nothing whatsoever to prevent Congress from passing a law specifying what level of CO2 is acceptable in automobile emissions, if they want to. To simplify things, they deliberately write the laws so as to leave the executive branch (which is constitutionally charged with enforcing those laws) the leeway to interpret them. If the Prez says nothing, the EPA (in this example) would have to form its own interpretation of what level sould be permitted and would make that one of its regulations (not laws). TPOTUS is, according to the Constitution, the head of the executive branch, which includes the EPA, so if he wants to set that regulation, he can, by issuing an EO, and the EPA would be bound to that inerpretation, but only because Congress wrote the law that way in the first place. Furthermore, if Congress doesn’t like the exec. branch’s interpretation, they can always pass new legislation spelling it out differently.
With the Neuclear Test Ban Treaty, IIRC, the US already followed the rules of this treaty, but the Senate didn’t want to be kept from changing its mind later, and testing neuclear weapons again, so they refused to ratify it. Without a law, such as the treaty, banning tests, or a law requiring them, it is up to the DOD whether or not to test. The President, of course, (do I really need to spell it out) is head of the DOD. According to the Constitution. So there.