Executive Orders and the Law
In a Representative Democracy such as the United States, most people are familiar with what a law is, many people know how a bill differs from a law, but most probably do not understand what an Executive Order is. Surely a week does not pass that it is not reported someplace that the President of the United States either signed an Executive Order to put into place a new policy or to rescind a previous one. The situation can be confusing because the President of the United States is generally not understood to be someone who makes law.
The President of the United States is the head of the Executive Branch and he or she has some explicit powers and some gray ones. The president can, for example, lead the country in making decisions regarding foreign affairs, nominate individuals for the Supreme Court, or in the role as “commander-in-chief ” lead the military. But the president’s authority is not absolute as any treaty he or she negotiates with a foreign power must still be approved by Congress, nominees to the Supreme Court must be confirmed by the Senate, and any troop deployments over 60 days must be authorized by Congress due to the War Powers Resolution. So, while the power of the president seems great it is, like virtually every other area of the U.S. government, subject to checks and balances. One area in which the president can have a great deal of power is in the area of the Executive Order.
Originally, executive orders based their legitimacy on Article II, Section 3 of the U.S. Constitution, which contains the phrase “he [the President of the United States] shall take Care that the Laws be faithfully executed.” This phrase was interpreted as a management tool, a way for the president to enforce Congress’s wishes. Almost immediately, presidents tried to widen the scope of the short phrase. For instance, George Washington proclaimed a “neutrality order” that declared that Americans must not be involved in disputes between foreign countries; this was not the execution of a law but the creation of a law.
President Washington issued a total of eight Executive Orders during his time in office. Not all Executive Orders were as dry as Washington’s. One of the more controversial Executive Orders was issued by President Franklin D. Roosevelt in 1942 when he “ordered the “’removal of resident enemy aliens’ from parts of the West vaguely identified as ‘military areas.’” In other words, FDR had internment camps set-up for Japanese-Americans, with one of the more notable residents being George Takei who later played Lieutenant Sulu on Star Trek. President Gerald Ford issued an Executive Order in 1976 prohibiting the Executive Branch from reinstituting FDR’s internment order even though a new Executive Order could be later drafted reversing that decree!
It may seem odd that for a nation so based on limiting the power of one branch of government that the president can, in effect, create laws that are so sweeping. Looking back at the origins of the United States, however, it becomes clear that in the 18th and for much of the 19th Centuries transportation was poor and long range communications were not easily possible so, for those times when Congress was not in session, decisions still needed to be made regarding the Federal Government. It does pose an interesting question whether, had the Constitution been written today, the Founding Fathers would have granted the president such leeway.
Should an Executive Order meet with enough resistance either from the public or from Congress, it is possible to reverse it. In effect, Congress “may rewrite or amend a previous law, or spell it out in greater detail how the Executive Branch must act” or a lawsuit may be brought challenging the Executive Order. In the latter case, FDR’s Japanese internment camp Executive Order was challenged, twice, but was upheld both times by the U.S. Supreme Court while President Harry Truman’s Executive Order to seize control of steel mills to settle a labor dispute was overturned.
Executive Orders can be a method for the president to move the country into a better, more inclusive way as when “Presidents Kennedy and Johnson used them to bar racial discrimination in federal housing, hiring, and contracting.” In other cases, Executive Orders follow the doctrine of the political party of the president who issues them as was the case with President Ronald Reagan who issued an Executive Order barring Federal funds from being used to advocate the use of abortion (the Republican party is generally against abortion) while President Bill Clinton signed an Executive Order reversing this policy (the Democratic party is generally not against abortion).
Out of all of the presidents the United States has had, Franklin D. Roosevelt issued the most Executive Orders (3,522) while John Adams, James Madison, and James Monroe issued the fewest (1 each).
Most recently in the news was President Barrack Obama’s Executive Order to close the detention camp at Guantanamo Bay in Cuba which reversed the policy of President George W. Bush who established the camp after September 11, 2001.
Due to the fact that the President of the United States leads the nation he or she is generally given a wide latitude when signing an Executive Order into law but, because this power is not explicitly given by either the Constitution, the Bill of Rights, or any of the later amendments there will always be the possibility for controversy depending upon the mood of the country and which political party is in power. As we have seen in this article, Executive Orders do place enormous power in the hands of one person, the president, and because they can have important implications for the country, they should be better understood by American citizens.
For more reading about Executive Orders and to see ones that have been signed you may visit this excellent site run by the National Archive in Washington, D.C.
- H. Price Jessup, Jr.
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