How powerful are presidential executive orders?

Cecil's Columns/Staff Reports
1

I noted that in your discussion of Executive Orders that you artfully skirted the issue of Executive Memorandum, which have come into vogue in recent years as a means to “seemingly” cut back on the number Executive Orders issued, even though they are essentially the same thing.

2

A link to the column in question: How powerful are presidential executive orders?

3

It’s a good question, and I wish Cecil had given an answer that had a bit more detail about the areas where an EO can operate.

A few things occur to me, and I’m sure our board’s legal eagles can correct my errors and add to my list as appropriate:

  1. Where the Constitution and the laws give the President discretionary powers, an EO can be an exercise of that discretion.
  2. Where the meaning of a law is ambiguous, an EO can give the Executive Branch direction on how to apply the law, pending applicable court decisions or clarifying legislation.
  3. Where Congress inadequately funds a given agency, given its statutory responsibilities, an EO can provide guidance on allocating funding among those responsibilities, to the extent that lack of specificity in the appropriation allows.
    And of course:
  4. As Cecil says, “the president’s executive power is reciprocal to congressional initiative: where Congress has said nothing about an issue, executive power is at its height; where it’s given pretty clear instructions, a president’s hands are largely tied.” Where the Constitution and the laws are silent, an EO can move into that space.

The main thing, of course, is that an EO cannot override the Constitution, the laws passed by Congress, or the decisions of the Federal courts; it must work within those bounds.

4

The article overlooks the use of secret EOs for both foreign and domestic surveillance. In this context they are immensely powerful.

E.g, optical taps were placed inside multiple AT&T backbone switching facilities to intercept and analyze all data (foreign and domestic) using on-premises NarusInsight supercomputers, code-named UPSTREAM. There was no warrant or legislative authorization for this, it was done essentially under executive authority. Both this and the related program STELLAR WIND were implemented under EO 12333:

5

Are there executive orders that are deliberately kept secret from the public that we have no legal right to see?

6

I’d assume the answer is ‘yes’ even in much more benign situations than this. I think it goes without saying that the President can issue formal guidance to our clandestine services without sharing those orders with the general public.

7

On a related note, I was interested to see, when I read the Obama-care legislation, how much (virtually everything) had been left up to the executive. The legislation only provided direction for the executiave program.
And later, when the program was defered because it wasn’t ready, it was clear that the legislation, while setting a date for the implementation of the named program, hadn’t set a date for the implementation of any particular aspects of the program. That had been left up to the executive.

In Aus, where the legislature and executive is not seperated, the executive writes an executive program, presents it to the legislature, votes on it, and executes the program they have approved. Stuff that will be ‘by regulation’ or ‘at Ministerial discression’ is approved as such by parliment (and often the subject of political attention).