Basis in U.S. Constitution
Presidents have issued executive orders since 1789. There is no Constitutional provision or statute that explicitly permits this, aside from the vague grant of “executive power” given in Article II, Section 1 of the Constitution and the statement “take Care that the Laws be faithfully executed” in Article II, Section 3.
Most executive orders are orders issued by the President to U.S. executive officers to help direct their operation, the result of failing to comply being removal from office. Some orders do have the force of law when made in pursuance of certain Acts of Congress due to those acts giving the President discretionary powers.
Other types of executive orders are:
national security directives,
homeland security presidential directives, and
presidential decision directives, both of which deal with national security and defense matters.
History and usage
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 October 20, 1862, by President Abraham Lincoln. That order became necessary when Union forces captured New Orleans; Lincoln issued the order to establish military courts in Louisiana. Today, only National Security Directives are kept from the public.
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 U.S. 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.
Wars have been fought upon executive order, including the 1999 Kosovo War during Bill Clinton’s second term in office. However, all such wars have had authorizing resolutions from Congress. The extent to which the president may exercise military power independently of Congress and the scope of the War Powers Resolution remain unresolved constitutional issues.
Criticisms
Critics [Please name specific person or group] have accused presidents of abusing executive orders, of using them to make laws without Congressional approval, and of moving existing laws away from their original mandates. Large policy changes with wide-ranging effects have been effected through executive order, including the integration of the armed forces under Harry Truman and the desegregation of public schools under Dwight D. Eisenhower.
One extreme example of an executive order is Executive Order 9066, where Franklin D. Roosevelt delegated military authority to remove all people (used to target specifically Japanese Americans and German Americans) in a military zone. The authority delegated to General John L. DeWitt subsequently paved the way for all Japanese-Americans on the West Coast to be sent to internment camps for the duration of World War II. Thousands of German Americans and Italian Americans were also sent to internment camps under executive order.
Executive Order 13233, which restricted public access to information was more recently criticised by the Society of American Archivists and other groups, stating that it “violates both the spirit and letter of existing U.S. law on access to presidential papers as clearly laid down in 44 U.S.C. 2201-2207,” and adding that the order “potentially threatens to undermine one of the very foundations of our nation.”
Critics[Please name specific person or group] fear that the president could make himself a de facto dictator by side-stepping the other branches of government and making autocratic laws. The Italian philosopher Giorgio Agamben in particular has criticized the generalization since World War I of the use of executive orders or decrees by all Western democracies, declaring that this tends toward the constitution of a “permanent state of exception.” The presidents, however, cite executive order as often the only way to clarify laws passed through the Congress, laws which often require vague wording in order to please all political parties involved in their creation.
Legal conflicts
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. [1] 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 super majority vote required and the fact that such a vote leaves individual lawmakers very vulnerable to political criticism. [2]
The precedent in Schechter Poultry Corp. v. United States might be of some relevance. The Supreme Court ruled that Congress cannot give the president power to create laws, so it would follow that an executive order in restraint of a law, not enforcing, would be beyond the president’s power.
