Obama signing exec

Constitutionality of Executive Orders

All presidents since George Washington have used what are now referred to as executive orders.  However, when a president issues an executive order that is controversial or unpopular, the question of their constitutionality is quickly raised by those who disagree with the president.  Because several of his executive orders have appeared to circumvent the legislative process, the constitutionality of President Obama’s use of executive orders continues to hover around him.

he first thing to understand when controversies about executive orders arise is that there is no provision in the Constitution authorizing them.  Presidents have historically based their use on Article II, Section 1, Clause 1 and Section 3, Clause 5 of the Constitution where the president is identified as the nation’s “executive” and empowered to “…take Care that the Laws be faithfully executed” less he be impeached (an article that is being ignored as President Obama openly refuses to enforce various laws he finds distasteful).

What these clauses in the Constitution were intended to do was give the president executive power to ensure that federal agencies of the executive branch properly carry out laws passed by Congress.  Therein is the source of the on-going controversy: Executive orders should be used to carry out the will of the Congress, not circumvent it.  The president is clearly not authorized to act on a certain issue simply because Congress has not or will not. To do so is to legislate from the Oval Office—something that is clearly proscribed by the Constitution.

Because President Obama appears to have used executive orders to circumvent the will of Congress—and in turn the America people—many now believe that in Obama’s America, “we the people” has been replaced by “me the president.”  For example, on just one day—January 16, 2013—President Obama signed more executive orders than many (though hardly all) of his predecessors signed during their entire time in office.  But the number of executive orders signed is not or, at least, should not be the issue.  The issue is the nature of the executive orders in question.  Do they by-pass the legislative process? This is the functional question when analyzing executive orders, not the number of them.

Executive orders have been signed by both Democratic and Republican presidents, typically relating to mundane and non-controversial issues.  But the issue—no matter how important or seemingly inconsequential—revolves around the question posed earlier.  Comparisons of the number of executive orders issued by each president are irrelevant when determining whether or not a given president is abusing the concept.  As Americans we elect Congressmen and Senators to make laws and presidents to implement and enforce them.  Executive orders that have the effect of enacting laws undermine this constitutional separation of powers and, in turn, our republican form of government.

No matter how frustrated and impatient with Congress a president might become, he has no authority to circumvent the elected representatives of the people and act as dictator or monarch.   Article I, Section 1 of the Constitution reads: “All legislative powers herein granted shall be vested in a Congress of the United States…”  This means the president has no legislative powers.  Article II, Section 1 of the Constitution reads: “The executive power shall be vested in a President of the United States of America…”  Article II, Section 3 then clarifies that the executive power vested in the president is limited to executing the law.  The Constitution is clear.  The president may suggest laws to Congress and veto laws passed by Congress, but he cannot make laws.  Congress passes laws and the president enforces them.  Hence, executive orders are illegal when they become de facto legislation.  To issue an executive order that is ipso facto a law is an impeachable offense.

The gist of the problem with presidents overreaching in the use of executive orders is that they can get away with doing this so long as Congress and the Courts are unwilling to wield the Constitutional power invested in their branches of government to rein in an out-of-control presiden.  The courts have not been vocal in raising the issue of presidents legislating from the Oval Office, but in cases that have come before them on this issue their rulings have been clear.  For example, in 1952 in Youngstown Steel & Tube v. Sawyer—a case in which President Truman bypassed Congress and ordered the steel mills seized—the court said: “In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.  The Constitution limits his function in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.”

The solution to the abuse of presidential power through the use of inappropriate executive orders is for Congress to stand up for representative government.  Presidents get away with using executive orders to circumvent Congress only because Congress allows them to.  Congress caved in on the issue during the 106th Congress in the 1999-2000 session when it failed to pass H.R. 2655.  This bill should be resurrected and passed.  If passed it will do the following:

  • Establish a statutory definition of a presidential order.
  • Make it easier to challenge the legality of presidential orders in court.
  • Define the specific constitutional powers the president may exercise by presidential order.
  • Terminate the powers and authority currently held by the president on the basis of national emergencies.
  • Vest the authority to declare national emergencies in Congress alone.
  • Repeal the ineffective War Powers Resolution

Congress must stand up to the president and assert its constitutional authority or risk negating the checks and balances the Constitution’s framers were so intent on establishing.  If Congress continues to refuse to exercise its constitutional responsibilities it risks becoming the irrelevant lapdog of an increasingly powerful and even dictatorial executive branch.

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Jacob "Jake" Steele

Dr. Jacob Steele is a professor of Political Science and the author of numerous books and articles in this field.

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