Executive Orders: Limits (with example)

[Jonathan_Chance]

What exactly are the limits on an Executive Order by the President?

We, in the newsroom, are debating just that thing for a specific reason.

The Delta Queen, a hotel-type Sternwheel Paddleboat owned Majestic Lines, has been mothballed due to its lack of an exemption to the Safety of Life at Seas Act. It has had such an exemption since 1968 or so and didn’t get its renewal this time because it is held up in committee by chair Oberstar (D-MN). Without the exemption it is not allowed to transit overnight passengers.

The SOLAS Act was extended to cover inland waterways by the Coast Guard with Public Law 89-777 and the Delta Queen was the only boat impacted.

My specific question is: Could President Obama issue an Executive Order giving a permanent exemption to the Delta Queen from the SOLAS? I ask because the city in which I live derives a good bit of economic activity from the visits of the Delta Queen and it’s passengers several times per year and the lack is being felt in our historic, touristy downtown.

In addition, then-candidate Joe Biden came to Marietta in October last year and promised that, if elected, he and Obama would do everything to bring the Delta Queen back to operating status and back to Marietta! Rah!

We interviewed him yesterday and, when questioned about his promise, Biden hemmed and hawed a bit and said “I don’t have standing to make a decision on the issue. It’s beyond our ability to make that kind of action.”

My reporters instincts are fired up, here. It is my belief that Obama could simply grant the exemption if he’d like with an Executive Order but my Managing Editor wants back up on that. Can you guys cite chapter and verse?

[Whack-a-Mole]

Looks like they can be anything the President wants it to be so far. It seems there is little judicial or legislative answer on this. That said it does seem the court spoke that an Executive Order must clarify a law rather than make new law. I presume an exemption for that paddlewheel would be ok under that analysis (IANAL).

Until the early 1900s, executive orders went mostly unannounced and undocumented, seen only by the agencies to which they were directed. However, the Department of State instituted a numbering scheme for executive orders in 1907, starting retroactively with an order issued on September 22, 1862, by President Abraham Lincoln. Executive order number 1 is The Emancipation Proclamation.

Until the 1950s, there were no rules or guidelines outlining what the president could or could not do through an executive order. However, the Supreme Court ruled in Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952) that Executive Order 10340 from President Harry S. Truman placing all steel mills in the country under federal control was invalid because it attempted to make law, rather than clarify or act to further a law put forth by the Congress or the Constitution. Presidents since this decision have generally been careful to cite which specific laws they are acting under when issuing new executive orders.

<snip>

To date, U.S. courts have overturned only two executive orders: the aforementioned Truman order, and a 1996 order issued by President Clinton that attempted to prevent the U.S. government from contracting with organizations that had strike-breakers on the payroll.[3] Congress may overturn an executive order by passing legislation in conflict with it or by refusing to approve funding to enforce it. In the former, the president retains the power to veto such a decision; however, the Congress may override a veto with a two-thirds majority to end an executive order. It has been argued that a Congressional override of an executive order is a nearly impossible event due to the supermajority vote required and the fact that such a vote leaves individual lawmakers very vulnerable to political criticism.

SOURCE: Executive order (disambiguation) - Wikipedia

[Gfactor]

This is a good review of where they can come from and the cases about their limits: http://www.llsdc.org/attachments/wysiwyg/544/crs-95-772.pdf

[Jonathan_Chance]

So based on all of that would the opinion be that the President could EO away the issues keeping the Delta Queen from plying its trade?

[Ravenman]

From what you described, it sounds like there is a law which applies to oceangoing vessels and the Delta Queen for which Congress must periodically pass another law to exempt the Delta Queen to allow it to continue to operate, and lately Congress has not done that.

Sometimes Congress will write waivers into law. It sounds like that was not done in this case, otherwise Congress wouldn’t have to pass a new law to allow the Delta Queen to operate.

If all those assumptions were correct, and there’s black letter law that applies to the Delta Queen, my opinion is that the Administration issuing an Executive Order to overrule, ignore, or set aside the law of the land is a profoundly serious Constitutional issue.

[Gfactor]

Justice Jackson laid out the rules in his concurrence in the *Youngstown *case:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. [n2] In these circumstances, [p636] and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, [p637] as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law. [n3]

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [p638] the Congress from acting upon the subject. [n4] 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.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0343_0579_ZC2.html

If an exemption requires an act of Congress, then the case probably falls under paragraph 3, which means that the EO is probably invalid. Of course, as a practical matter, that might not matter much, but that’s how I see it legally. You could make a case that this falls under paragraph 2 (“congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility,”) but that just means the answer is murky, at best.

More on the issue here: Save the Delta Queen Campaign - Steamboats.org

[Nametag]

The president can direct the agencies under his authority to take actions that are within their authority. Whether or not he can direct the Coast Guard to exempt the Delta Queen depends on exactly what authority the Coast Guard has to do so. It’s not entirely clear whether they have discretion in the matter. Certainly it seems to me that there’s been no effort to ask anyone other than Congress for such an exemption, which implies (but does not prove) that only Congress has the authority.

I’m not sure how much sense this fight makes. On the one hand, Majestic America has a “Save the Delta Queen” Banner on their website; on the other, that same website says that they’re selling all assets, and plan no operations in 2009, including their two modern steamships. The Delta Queen has been functioning as a hotel in the meantime. Makes me go hmmm. Do their two fully-compliant ships matter so little?

There’s no question that using this issue as a stick to punish union-busting is odious. But then, so is union-busting.

[Jonathan_Chance]

As I understand the process back in the 1960s it went like this:

1. Congress passes SOLAS
2. Coast Guard issues regulation saying that SOLAS applies to inland waterways.
3. Delta Queen receives nine near-consecutive exemptions to the Coast Guard regulation
4. Now, no exemption. Biden makes campaign speech.
5. My pub calls him on it.

Given that would an Executive Order rescinding the Coast Guards regulation be valid?

[Gfactor]

@Jonathan_Chance

As I understand the process back in the 1960s it went like this:

1. Congress passes SOLAS
2. Coast Guard issues regulation saying that SOLAS applies to inland waterways.
3. Delta Queen receives nine near-consecutive exemptions to the Coast Guard regulation
4. Now, no exemption. Biden makes campaign speech.
5. My pub calls him on it.

Given that would an Executive Order rescinding the Coast Guards regulation be valid?

I’m unable to verify that the Coast Guard had any involvement in any “exemptions” for the DQ. Here is what I found:

The Safety at Sea Act

In May 1966, the Safety at Sea Act passed the U.S. House of Representatives and came before the Senate. The Act, if passed by both branches, would force the Delta Queen out of operation. After consulting with lawyer William Kohler, Simonton, Muster, and Quinby traveled to Washington, DC, to try to save their boat. As chairman of the board of GLS, Quinby testified before the Senate.

In his speach before the Senate, Quinby successfully persuaded legislators to add an amendment to the bill granting the Delta Queen a two-year delay in enactment. The company promised to either bring the Delta Queen to modern construction standards or build a new boat to replace her. In 1968 the Delta Queen won another two-year delay.

If this is true, the Coast Guard would lack authority to create an exemption. That’s why Congress has always done it.

I’m also unable to verify that the Coast Guard “extended” the law to inland waterways. It looks like Congress did it and your cite to a Public Law supports that version of events. Only Congress passes federal laws.

[Polycarp]

My opinion: Congress did not contemplate SOLAS regulating vessels plying inland waterways – but neither did they forbid it. The Coast Guard regulations are therefore legitimate as proper regulatory steps implementing SOLAS.

Congressional intent was made clear in the nine near-consecutive exemptions granted by Congress.

Now, to rescind the Coast Guard regulation totius porcus by Executive Order would be (a) a proper exercise of Presidential power, but (b) fly in the face of the Congressional intent to provide for safety of life at sea. A ship which sinks in the middle of a river can drown people nearly as effectively as one at sea.

However, the Delta Queen is the only surviving 19th century sternwheel paddleboat – Majestic has two modern vessels built to resemble it, but it is unique, of great historical importance. For the President to issue an executive order exempting certain historical craft from the full SOLAS regulations owing to their historic importance, would be completely within his powers, in particular the Historical Preservtion acts. This boat is of far greater historical importance than the birthplace of some random state governor, as the last functional sternwheeler from the days when they flourished.

IMO, of course. Not only IANAL but IANASCOTUSjustice.

[Jonathan_Chance]

@Gfactor

I’m unable to verify that the Coast Guard had any involvement in any “exemptions” for the DQ. Here is what I found:

If this is true, the Coast Guard would lack authority to create an exemption. That’s why Congress has always done it.

I’m also unable to verify that the Coast Guard “extended” the law to inland waterways. It looks like Congress did it and your cite to a Public Law supports that version of events. Only Congress passes federal laws.

Well enough, as well as it goes.

My ME is the true expert here. I will ask him tomorrow morning (he’s off covering something right now) about the Coast Guard’s extension of SOLAS to include inland waterways and present it here when he briefs me.

[Gfactor]

Jonathan Chance: Check your email. I sent you some documents that may help.

[Jonathan_Chance]

And so you did. Though the one is 570 pages! Oofah!

Thanks for everything, guys. It’s been a big help.