Since when did executive orders come about? What is the mechanism behind their power? In other words, how can executive orders have any enforcement power?
Seems like the government got confused on who gets to set laws…but I’m pretty ignorant of the whole deal.
I don’t even understand how the EPA, USDA or my state conservation department can constitutionally create what amounts to laws.
There’s a limit to what Congress can do. And their power is only to enact laws. The executive branch is supposed to enforce them.
So Congress will enact a law like the Bridge Safety Inspection Act. The law will set up a government agency called the Federal Bureau of Bridge Safety and give them the mandate to “determine, set, and enforce the safety standards for all bridges on the interstate highway system.”
Congressmen aren’t bridge engineers. They have no specific knowledge of what the safety standards should be for a bridge. The FBBS will hire engineers who do know the subject and they’ll set the standards. Then the FBBS will hire inspectors who will go around to bridges and see if they meet those standards. If they don’t meet the standards, the FBBS will order the bridge closed to traffic.
So ten years later, when a bridge is closed and you have to spend an extra hour driving to work, you can complain about how a bunch of bureaucrats closed the bridge without anyone’s permission. But ultimately, they can trace their authority back to the original law passed by the peoples’ elected representatives in Congress.
Lincoln’s Emancipation Proclamation is generally regarded as the first executive order. It was very controversial at the time, but then, there were so many other controversial things going on that it got somewhat lost in the noise.
And since it’s the executive branch which is tasked with enforcement of the laws, one might even say that executive orders are nothing but enforcement power.
Is this sort of thing is how Bush enabled Uranium mining 3 miles from the Grand Canyon?
No, it isn’t. Presidents have been issuing executive orders since the first days of Washington’s administration. The Constitution vests the President with “executive power” and empowers him to “take Care that the Laws be faithfully executed.” When Congress creates executive agencies, the enabling statutes may explicitly give the President executive authority over that agency (not all of them do.) In the early days, this power was exercised informally by the President simply given verbal or written instructions to his subordinates to carry out his policy. Later, a more formalized system was developed with the National Archives numbering written EOs, retroactively starting with one of Lincoln’s (I don’t remember if it was specifically the Emancipation Proclamation or something else, but it had something to do with a military operation during the Civil War.)
Since Youngstown vs. Sawyer, it has been clear that the President can not create law through executive order; he can only give orders pursuant to the authority granted him by the Constitution or by statute. Thus most EOs now cite the specific statute under which the President claims to be acting.
Bush has taken a very broad interpretation of his executive powers. He figures that the Constitution is a law and that the Constitution gives the President the duty to preserve, protect, and defend the Constitution and make sure that the laws are faithfully executed. So as long as he defines his actions as something that is part of carrying out these duties, then he is acting within the law.
You can think of two kinds of executive orders:
The president is in charge of so-called “executive agencies,” including the department of labor (run by the secretary of labor, who is a cabinet member, and so appointed by the prez with the advice/consent of the senate).
The basic concept is this is how the president exercises control of a large, bureucratic organization in a formal way that gives people notice of what he’s doing. The power isn’t in question-the department is in the executive.
The doctrine of delgation is a complex issue of constitutional law which I’m not going to go into detail on, but as noted above, it would be impossible for either the president himself or the congress themselves to effectively manage every program they implement-they need to pick people to manage how they actually go into effect. (for example, if congress appropriates money to build a bridge, they won’t sign the contract themselves–they’ll assign some agency to be responsible for the details).
We generally have no problem with this as long as (1) the power being delegated is something that is within the powers given by the constitution to the agency doing the delegating, and (2) isn’t something that is nondelegable–for example, nominating Article III judges, which must be done by the president.
Of course, the difference between the two types of order is simply in the source of the president’s power to issue an order. In each, one would ask what the power being asserted is to determine the scope of the order: for example, an order to an executive department is likely only binding on the department; of course, congress or the constitution could give a farther-reaching power (for example, by giving the president the power to issue environmental regulations that bind the general public).
IANAL .
In any event, now that we have a President-Elect-with-a-conscience, we can all be sure he has his people chasing down all these ourageous Executive Orders and will promptly revoke the worst of them.
White House chief of staff-designate Rahm Emanuel says they’re doing that right now.
It is mind bending, perhaps, but we might be going from the very worst, to the very best President this country’s ever had.
Just the thought of Obama in the White House makes me feel soooooooooooooo good!!
This is not the place for that discussion.
You’re right.