Executive Order

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Most new laws in the US are made by Congress, however the Constitution also grants the President some legislative authority in the form of executive orders for the purpose of empowering officers and agencies of the Executive branch and managing operations within the federal government itself. Congress can also explicitly delegate to the President discretionary powers (delegated legislation) for a particular law. Like both legislative statutes and regulations promulgated by government agencies, executive orders are subject to judicial review, and may be struck down if deemed by the courts to be unsupported by statute or the Constitution.

Major policy initiatives usually require approval by the legislative branch, but executive orders have significant influence over the internal affairs of government, deciding how and to what degree laws will be enforced, dealing with emergencies, waging war, and in general fine-tuning policy choices in the implementation of broad statutes.

Congress has the power to overturn an executive order by passing legislation in conflict with it. Congress can also refuse to provide funding necessary to carry out certain policy measures contained with the order or to legitimize policy mechanisms. 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 supermajority vote required and the fact that such a vote leaves individual lawmakers very vulnerable to political criticism.

In 2014, the Republican-led House of Representatives approved a resolution authorizing Speaker John Boehner to sue President Barack Obama over claims he exceeded his executive authority in changing a key provision of the ‘Affordable Care Act’ (‘Obamacare’) on his own and over what Republicans claimed had been ‘inadequate enforcement of the health care law.’ In particular, ‘Republicans objected that the Obama administration delayed some parts of the law, particularly the mandate on employers who do not provide health care coverage.’ The suit was filed in the US District Court for the District of Columbia.

There is no constitutional provision nor statute that explicitly permits executive orders. The term ‘executive power’ in Article II refers to the title of President as the executive. He is instructed therein by the declaration ‘take Care that the Laws be faithfully executed,’ else he faces impeachment. Most executive orders use these Constitutional reasonings as the authorization allowing for their issuance to be justified as part of the President’s sworn duties, the intent being to help direct officers of the branch carry out their delegated duties as well as the normal operations of the federal government: the consequence of failing to comply possibly being the removal from office.

Other types of orders issued by ‘the Executive’ are generally classified simply as ‘administrative orders,’ such as: ‘Presidential determination,’ ‘Presidential memorandum,’ and ‘Presidential notice.’ ‘Presidential directives’ are considered a form of executive order issued by the President with the advice and consent of a major agency or department found within the Executive branch, such as: ‘National Security Directives’ and ‘Homeland Security Presidential Directives.’

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, although all presidents since its passage have complied with the terms of the Resolution while maintaining that they are not constitutionally required to do so.

President Truman’s ‘Executive Order 10340’ in ‘Youngstown Sheet & Tube Co. v. Sawyer’ (1952) placed all steel mills in the country under federal control. This was found 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. When they believe their authority for issuing an executive order stems from within the powers outlined in the Constitution, the order will simply proclaim ‘under the authority vested in me by the Constitution.’

All presidents beginning with George Washington in 1789 have issued orders that in general terms can be described as executive orders. Initially they took no set form. Consequently, such orders varied as to form and substance. The most famous Executive Order was by President Abraham Lincoln when he issued the ‘Emancipation Proclamation’ on January 1, 1863. Political scientist Brian R. Dirck states: ‘The Emancipation Proclamation was an executive order, itself a rather unusual thing in those days. Executive orders are simply presidential directives issued to agents of the executive department by its boss.’ Until the early 1900s, executive orders went mostly unannounced and undocumented, seen only by the agencies to which they were directed. This changed when the Department of State instituted a numbering scheme in 1907, starting with an order issued on October 20, 1862, by President Abraham Lincoln. The documents that later came to be known as ‘Executive Orders’ apparently gained their name from this document, captioned ‘Executive Order Establishing a Provisional Court in Louisiana.’ Lincoln issued a total of 48 orders.

President Franklin Roosevelt issued 3,522 orders, and was the was the first to have an EO declared invalid. He issued more EO than any other president (Woodrow Wilson is a distant second with 1,803). Prior to 1932, uncontested Executive Orders had determined such issues as national mourning on the death of a president, and the lowering of flags to half-staff. President Franklin Roosevelt issued the first of his more than 3,500 Executive Orders on March 6, 1933, declaring a bank holiday, forbidding banks to release gold coin or bullion. ‘Executive Order 6102’ forbade the hoarding of gold coin, bullion and gold certificates. A further Executive Order required all newly mined domestic gold be delivered to the Treasury. By ‘Executive Order 6581,’ the President created the Export-Import Bank of the United States. On March 7, 1934, he created the National Industrial Recovery Act (NIRA, ‘Executive Order 6632’). On June 29, the President issued ‘Executive Order 6763’ ‘under the authority vested in me by the Constitution,’ thereby creating the National Labor Relations Board. The Hughes Court of the 1934 term found NIRA unconstitutional. The President then issued ‘Executive Order 7073’ ‘by virtue of the authority vested in me under the said ‘Emergency Relief Appropriation Act of 1935,’ reestablishing the National Emergency Council to administer the functions of the NIRA in carrying out the provisions of the Emergency Relief Appropriations Act.’ On June 15, he issued ‘Executive Order 7075,’ which terminated NIRA and replaced it with the Office of Administration of the National Recovery Administration. Roosevelt’s Supreme Court of Justices Hugo Black, Stanley Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, and James F. Byrnes were entirely supportive of the President’s choices. Only George Washington had had such influence over Court appointments, choosing all of its original members.

Large policy changes with wide-ranging effects have been passed by executive order, including the racial integration of the armed forces under Harry Truman and the desegregation of public schools under Dwight D. Eisenhower. FDR used ‘Executive Order 9066’ to create military authority to remove any or all people in a military zone, paving the way for all Japanese-Americans on the West Coast to be sent to internment camps for the duration of World War II. ‘Executive Order 13233,’ issued by President George W. Bush in 2001, which restricted public access to the papers of former presidents, was criticized 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…’ and adding that the order ‘potentially threatens to undermine one of the very foundations of our nation.’ President Obama revoked the order in January 2009. The Heritage Foundation, a conservative think tank, has 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.

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