What are executive orders for? Is an executive order in itself sufficient to form administrative law for the Executive Branch?
IIRC, an Executive Order (in the context of the US Government) is basically an order given by the President of the US which, assuming it doesn’t contradict any existing laws on the books passed by the legislature, has the force of law until either the Legislature or Judiciary do something to knock it down.
For example, the President can traditionally order troops to any particular place, but only Congress can authorize the aquisition of supplies for deployed forces (this has changed back and forth over the years) so, in theory, if a crisis flared up in Smallcountrylandistania, and the President felt it was an immediate concern, he could order the Marines to move in, then turn around and beg Congress for money to keep paying to have the Marines fighting there (war isn’t cheap). If Congress decides it was a good call, they make some declaration to that effect, if not, the Marines go home when they run out of bullets (I was allways taught that there was a 90 day limit on this).
Raguleader is right on the money. Executive orders are the instrument that the President uses to exercise the power over the executive branch which is granted to him by the Constitution (in the case of the armed forces) or by Congress (in the case of all the other executive departments that they have created over the years.)
There is no particular law outlining the process for issuing an EO; it used to be that Presidents just wrote whichever bureaucrat they wanted to boss around and told them what to do. It wasn’t until the 20th century that the National Archives started keeping track of an numbering EO’s. They retroactively made Lincoln’s emancipation proclamation Executive Order #1.
Executive Orders are subject to judicial review as well. In particular, if challenged, the government must prove that the President had the authority (either from the Constitution or Congress) to issue the order, and that the order itself does not violate any fundamental rights. One of the most famous cases was Truman’s seizure of the steel industry. The Supreme Court ruled that the President had no statutory authority to go around seizing private industries, and therefore the order was unconstitutional. Since then Presidents are usually quite clear about what law they are enforcing when issuing EOs.
Note that Congress is under no obligation to give the President executive control over new agencies; they have created a number of offices which are technically part of the executive branch but which do not answer to the President. The Food and Drug Administration is an example.
The President has certain powers given him directly by the Constitution, not requiring Congressional authorization to execute them. (See Article II of the Constitution.) To implement those powers, or powers he is authorized by statute law, he issues an Executive Order which has the force of law – provided that it is within the scope of his legal powers. If that is disputed, it becomes justiciable, as in the Truman steel-seizure case that friedo notes.
As others have said, Executive Orders themselves are not laws - they cannot create new legislation. They have to be based on existing law.
For an example, Congress might pass a law creating the Coastal Defense Agency, give it the broad mission of protecting the United States’ maritime border, place it under the authority of the President, and give him the power to create whatever policies he feels necessary for the agency to carry out its mission. So the Presdient then writes an Executive Order saying the CDA will stop and search every boat entering American territorial waters. Was any law passed saying all boats would be searched? No. So is the order illegal? No, because it falls within the scope of the law Congress passed even if that specific detail wasn’t mentioned.
Although you might be able to make a case that the CDA’s search policy violates your rights under the fourth amendment. 
According to my Political Science teacher (back when I was a young grad student in 1989), the 90-day limit on waging a war without Congressional approval was part of a package of laws passed in the wake of the Watergate scandal, designed to limit the powers of the President.
Thing was, though, that some parts of these laws basically gave Congress the power to veto the President’s actions. During the Reagan administration, a case came to the Supreme Court in which it was decided that the “legislative veto” power was not expressly delegated to Congress by the U.S. Constitution, and so the legislative-veto clauses of those laws were declared Unconstitutional and void. The remaining clauses of those laws were then in a kind of limbo.
I don’t believe it is known, to this day, whether the 90-day-war limit imposed by Congress would pass Constitutional muster or not.
The War Powers Resoultion was more a reaction to Vietnam rather than Watergate.
And you or your teacher seem to have some confusion on who holds what power. There’s no such thing as a legislative veto - only Congress makes the laws, so there are no Presidential laws for them to consider vetoing. Congress can prohibit the President (or any other citizen) from doing something by passing a law against it, but that’s a law not a veto.
And the Constitution gives Congress the power to declare war. The only war making power the President has is what Congress delegates to him. There is speculation about whether the War Powers Act would pass Supreme Court scrutiny, but the question has always been whether Congress gave the President too much power, not whether it took any of his powers away.
No, tracer’s right. There did used to be a legislative veto of certain presidential actions, but the Supreme Court struck it down as an unconstitutional violation of the instructions in the Constitution on how Congress makes laws – same thing as the line-item veto of five or six years ago.
–Cliffy
I’ve never heard of this and I’m curious now: How exactly would a legislative veto work? What exactly was vetoed? And how would this differ from normal legislation?
When Congress passed certain laws which empowered the Executive to do stuff, they wrote in that the Executive actions had to be submitted to Congress, which had the right to overturn the action by simple majority vote. For instance, in the case that brought the system down, when the INS granted amnesty under certain programs, it had to submit that to Congress, and either Chamber, acting alone, could “veto” the amnesty. That happened to Chadha (I think it was the Senate that dinged him, but I don’t remember for sure), so he sued and won. (INS v. Chadha, 462 U.S. 919.)
The Court held that Congress can act by the procedure spelled out in the Constitution for passing laws, and that they could not pass laws any other way. Congress properly authorized INS to make these amnesty decisions under legislation passed by both Chambers and signed by the president (or which becamse law over his signature), and it could not then change the terms of its action by a single-Chamber act that was never presented to the president for possible veto.
After Chadha, since it was unicameral action, there was some question as to whether the legislative veto survived if both Chambers were in agreement, but there was another case about that – it didn’t. To make law, the two Chambers must not only act in concert by passing identical bills, but those must be presented to the president for possible veto as set out in the Constitution; there’s no such thing as the legislative veto now, although of course Congress can still overrule agency action by passing a law in the legitimate way (and then either convincing the president to sign it or overruling his veto).
–Cliffy