Rescinding an Executive Order in the future

This may have been covered, but I didn’t find anything this week in GQ and nothing of specific relevance in “Can Bush Do That?” in GQ ( ).

So, once Bush is out of office, can the next president, if he disagrees with Bush’s recent E.O. to restrict public access to presidential documents, simply sign a new E.O. that rescinds Bush’s, and immediately open the floodgates?

Obviously, when Congress makes laws, the sheer problem of getting so many people to agree to them provides a bit of inertia and stability (i.e., it’s not easy to get a law passed, and not easy for the next congress, when controlled by an opposing party, to enact new legislation overturning the old law). Is there anything to prevent One Pres. after the other from negating the previous one’s orders on a whim?

Nothing to stop a president from rescinding his own or another president’s executive order, other than that most executive orders serve a purpose and aren’t too controversial. When Bush became president, he rescinded a number of Clinton’s executive orders, the most controversial one being the order changing the amount of allowable arsenic in water.

Captain Amazing wrote:

Which he recently re-instated, after further study showed that even the Clinton standard was, in all probability, too lax.

Right…I’m not making an argument as to whether or not the standard should exist, just using the Arsenic order as an example of an order that was revoked by a president.


Well, now hold on a second. I seem to recall that he undid that one before it became effective or something like that.

Let’s take some older ones to make sure we’ve got this right. For example, I also seem to recall that Clinton decided to “reinterpret” the EO banning political assassinations and that Bush went along with that, but that neither actually undid the order. Is that because they wouldn’t, or couldn’t?

I’d say wouldn’t. The reason the order was issued in the first place was word got out about some of the unsavory things that the CIA was doing, and so, Carter, I think, issued that order. In an interview I saw with Rumsfeld, he didn’t seem to think that the order would really hamper US efforts in anything, so I think that the desire just isn’t there to repeal it. IIRC, there’s never even been a court challenge to any EO, so it would be “interesting” if some President issued an EO to repeal the US Constitution, or something equally drastic and there was a court challenge made.

It was Ford who issued the anti-assasination order, I believe.

My understanding of exectuive orders is that they are simply directions from the President, as chief executive, to subordinates in the executive branch. Thus, any President can change them at will, including the President who made them.

Plus, Congress can always pass laws regulating the area as well, which would have superior status to an executive order. For example, the prohibition on strikes by federal employees comes from the federal statute regulating the federal civil service, not from an executive order.

So if Bush rescinded the non-assasination order, and enough of the Congress Critters disagreed with that decision, it would always be open to Congress to pass a law prohibiting federal officials from engaging in assassination.

tuckerfan said:

Well, no, actually.

First off, the President only has the powers granted to him by the Constitution. The Constitution does not give him the power to repeal any part of the Constitution by executive action - that’s reserved for Congress and the states. A President who tried to do anything so silly would find it overturned by the courts very quickly.

And yes, the courts have considered the validity of executive orders on occasion. The most famous case was the ‘Steel Seizure Case,’ when President Truman issued an executive order to the Secretary of Commerce, directing him to take over the steel industry to avert a strike which the President thought would endanger national security (the Korean War was still on). The President had no statutory authority for the action, and relied on the inherent powers of the President granted by the Constitution.

Truman issued the order on April 9, 1952. In less than 2 months, the matter had reached the Supreme Court, which held that the executive order was invalid: YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952).

Damn! I stand corrected. I thought that I’d read somewhere (in Gore Vidal’s United States) that there’d never been a real court challenge to EO’s, but I can’t find it, and from what Piper’s posted I’d say Vidal was wrong.

Gore Vidal? chap who seems to think that Timothy McVeigh had a valid point?

I wouldn’t trust anything that Vidal says about the federal government, nor his constitutional analysis about the lack of limits on federal executive powers.

Wow! He certainly seems to have gone off his medication from what that article indictates. Would like to read Vidal’s piece, though, and not merely the commentary on it. The author of the article could be one of those extremists who thinks that simply because one admires some of the technological innovations the Germans developed during WW II that one must be a closet Nazi sympathizer. Still, based on the brief quote he gives of Vidal…