As foreigner ignorant in many ways of the mechanisms of your government , I have a few simplistic legal questions, if I may… ( be gentle)
From Obama’s SotU speech recently, I note he said the following
“Now, yesterday, the Senate blocked a bill that would have created this commission. So I’ll issue an executive order that will allow us to go forward…”
So, presumably he can override a senatorial decision with an Executive Order to allow an agency or commission to be set up. What else can he do with this approach?
The Wiki page has some information on it, and notes that only 2 no. executive orders have ever been overturned by the US courts. As the Democrats had until recently a nominal supermajority in the Senate, could Obama not simply have ordered polices he wanted enacted and had them confirmed by the senate without even needing a straight vote on a bill? Or would this be circumventing all sorts of other laws, procedures and precedents? ( Would this sort of attempt be resisted hard from both sides of the aisle to avoid any dangerous precedent in executive order use? )
What other limitations are placed on the use of the Executive Order – are they even considered constitutional?
The President can’t over-ride the legislature with an Executive Order. If the Senate passed a law saying Obama couldn’t convene a Budget Commission (or more likely, forbid him from using federal funds to do so), Obama would be out of luck.
But in the case of the Commission Obama mentioned, the Senate didn’t pass such a law, they just failed to pass legislation to create such a Commission. They never said Obama couldn’t make a Commission on his own, and since the President presumably has discretionary funds for creating advisory panels, he’s saying he’ll issue an order for whatever part of the Executive Branch deals with such things to go ahead and form one.
Of course, the resulting panel won’t really have any power, they’ll just give Obama a report with recommended taxes/spending cuts.
Are you from a state with a parliamentary system? Over here, the president has no direct power over Congress. When, as now, they’re politically allied, they certainly consult with each other and may act in concert, but the president has no power whatsoever to “order policies he want[s] enacted.” Indeed, the Senate in particular so husbands its own authority that if the president ordered them to do something, they’d probably refuse, even if it’s something they wanted to do. (That’s part of what happened in the early '90’s with President Clinton’s attempt at establishing universal health care.)
Anyway, as for the precise question, Simplicio is correct. The original legislative proposal (which as crafted was an astoundingly stupid idea, BTW), would IIRC have forced Congress to vote yes or no on any official recommendations the budget panel made. (As opposed to ignoring them, killing them in committee, filibustering them, or using any of the other many veto points available to eighty-six legislation in the American system.) The president doesn’t have any authority to make Congress do this by executive order. He can create an advisory panel, and presumably any recommendations they make will be communicated to Congress, but they’ll have no priority status or any requirement that Congress ever gives them a vote.
Note also – our president is elected separately from the Congress. He is not a member of Congress, and in many cases has never been one. (Obama was a senator, and the first George Bush had been in congressman, but Carter, Reagan, Clinton, and George W. Bush never served in Congress.) In the U.S., citizens vote for two senators and one congressman as well as the president; all are elected on separate tickets in separate races, and not all at the same time. So the president’s constituency is the polity generally, not the members of his party in the legislature, as they aren’t the ones who put him in power, and they have essentially no power to remove him.
Executive orders are limited to the powers granted to the President via the Constitution or federal statute. Any orders given must be pursuant to those powers and within the law.
So, for example, the Constitution makes the President commander-and-chief of the armed forces. So he can issue an executive order telling the military to take some combat action. But he can’t, for example, order the Navy SEALs to assassinate his least favorite Republican senator, because murdering senators is illegal.
The President’s broad authority over other parts of the executive branch comes from the enabling statutes that created them. For example, the President can order the CDC to forcibly quarantine someone during a rare tuberculosis outbreak, as happened a couple years ago, because Congress gave the CDC that power in legislation. But the President can’t order the CDC to arrest anyone wearing purple socks.
If Congress strongly disagrees with an executive order that otherwise appears to be legal, they can simply refuse to appropriate any money for it. The President and executive agencies can use their discretionary budgets, but once those run out, the next year’s appropriations will include language that says “and you can’t use your discretionary budget for this thing which we don’t like.” That makes the order moot.
An executive order can be challenged in court, if you can argue that the President does not have the statutory or constitutional authority to give the order, or that executing the order would be illegal. The most famous case is probably the above-mentioned Youngstown v. Sawyer, wherein President Truman issued an order seizing all the country’s steel mills. The court ruled that the President had no authority to seize steel mills in an emergency (although Congress could grant him that power if they desired) and therefore the order had attempted to create a new law rather than execute an existing law.
Since then, all formal executive orders have meticulously cited exactly what statute or section of the constitution they pertain to, and they are rarely challenged successfully.
A President cannot initiate any law. His power is supposed to only be enforcing the laws that Congress passed.
But there’s a lot of interpretation involved. An activist President can announce “This is how I interpret this law and this is how I plan on enforcing it” and go far beyond anything Congress may have intended. At which time, Congress can step in and pass legislation that specifically constraints the President or the courts can step in and rule the President’s interpretation is incorrect. But both branches have traditionally given the President fairly wide leeway. And there is the practical matter than the White House can usually get things going a lot quicker than Congress or the court system can react to stop them.
Good post, friedo. The President, being an insanely busy person, also often delegates his authority to others, either by custom, executive order, or as authorized by statute. In the aforementioned example, the President might not personally order anyone forcibly quarantined, but would have let the Secretary of Health and Human Services or the Director of the CDC have that authority. They serve at his pleasure, though, so he could reverse such an order and/or discipline or fire the person giving it, as he saw fit.
Historian Clinton Rossiter once wrote, “The President is a kind of magnificent lion who can roam widely and do great deeds so long as he does not try to break loose from his broad reservation… A strong President knows just how far to go in the direction he wants.”