Executive Orders have been issued by Presidents since 1789, so they are not something new, however the use of them has changed over time.
Until 1907 they were not announced to the general public and were undocumented. The power of “Executive Orders” are not specifically given to the President and the Executive Branch, but have been ‘derived’ from two sections of the Constitution.
Article 2, Section 1, Clause 1.
“The executive Power shall be vested in a President of the United States of America”
and in Article 2, Section 3, Clause 5
“he shall take Care that the Laws be faithfully executed,”
The intent is said so that the Executive Branch can help officers carry out the delegated duties of the Executive Branch and the normal “day to day” operations of the Federal Government.
Along with “Executive Orders” the other types of “Orders” that make up the Executive branch are generally classified as “administrative orders” rather than “Executive Orders”. These are
- Presidential Determination: Basically a official policy or position taken by the Executive Branch, which determines for example, foreign policy, drug policy, etc.
- Presidential Memorandum: A presidential Determination falls under this as well, but so does MEMORANDUM OF DISAPPROVALwhich is a public veto statement and HORATORY MEMORANDUMwhich is a broad policy statement, issued to executive agencies and not a public PRESIDENTIAL PROCLAMATION which is largely ceremonial
- Presidential Directives: Considered a form of “Executive Order” but is done with the advice and consent of a major agency or department found in the Executive branch, such as Homeland Security or National Security Directives. These often are Classified but carry Full force of the Law.
History of Executive Orders
In 1907 the Department of State started a ‘numbering’ system for executive orders, retroactive starting in 1862 with an Order by then President Abraham Lincoln which established a provisional court in Louisiana.
That was only a small step to reign in and make transparent the muddy waters that were “Executive Orders”
In 1952 there was finally a step to outline where the boundaries of Executive power lay. In the case Youngstown Sheet and Tube Co. v. Sawyer, The Supreme Court ruled that then President Harry Truman’s Executive Order 10340 to place all steel mills in the country under Federal control was invalid, since it was attempting to make new law and not to clarify or further a law put forth by congress or the Constitution. Since this time Presidents have been careful and diligent to cite SPECIFIC claws they are acting under.
Only two Executive Orders have ever been overturned, that of the just mentioned 10340 by Harry Truman and President Bill Clinton’s attempt to make it illegal for the Federal Government to contract with organizations and businesses that had “strike breakers” on the payroll. Clinton’s order made it illegal for the Federal government to ever do business with a company that employed anyone who had quite the union monopoly and went back to work.
Congress overturned Executive orders ex post-facto between 1939 to 1983 when they would pass legislation that came into conflict with Executive Orders, however in 1983 the Supreme Court ruled in the INS v Chadha case which said that if the president issues an executive order and was negated by “legislative veto” then that represented a lack of “bicameral passage followed by presentment to the President”. Since that case the Congress has sought for other measures to override Executive Orders such as refusal to approve funding, which would cut the teeth out of any Order. The President would have the power to veto that decision unless the necessary 2/3 majority was found to pass it and override the Veto. However the Super-majority rule is nearly impossible to affect in reality, leaving the Presidential, Executive Orders intact.
The War in Kosovo in 1999 was fought under Executive Order and not Congressional Approval of hostile action. Nominally Congress is supposed to approve all military action by declaring and “Act of War”, however the President may exercise military power independent of Congress through the “War Powers Resolution” passed in 1973. The Constitutional issues of the scope of the power the President has under this act, is still unresolved.
Executive Orders have ranged from Establishing a post office in Louisiana to integration of the Armed Forces to FDR’s order fro the internment of Japanese Citizens during WWII.
One can see how there are two sides to the story, Someone can point to the Order integrating the Army or Desegregating schools as a “Moral” use of Executive Orders and for its necessity, however one can also point to the nationalization of Steel Mills, Committing the Military to War without Congressional Approval and the internment of Citizens as the “IMMORAL” use of executive orders and its not only possible but proven use to undermine Constitutional rights and civil liberties.
Congress does have the power to stop things like this, they hold the purse-strings.
President Obama cannot issue an Executive Order that would hold up to confiscate, band or require registration or firearms unless they pass one first. He could hold onto the shaky foundation of existing laws. Remember a Executive Order is valid as Law only if it “clarifies” a law, helps the executive carry it out, or “furthers” a law put forth by congress. Existing laws would be hard to make this work, it is possible however. The easiest way for this to happen is if Congress DOES pass some sort of law requiring any or all of these things.
Like i said Congress holds the purse-strings so they can defund any organization that would carry this out, say…the ATF or FBI, which would make it impossible to implement, so it is possible, and one of the reasons Congress was given this power. Technically the Congress could stop Obama care by not allowing funding for its implementation.
This is all well and good in a philosophy but in reality Congress will not do this, they never have.
For all the bellyaching of Democrats after they took over in 2006 over the Iraq War, for all their soapbox grandstanding they had the power to stop the war immediately. They could have defunded the war effort and forced the president to bring them home. They didn’t, so if they didn’t do it for that, do you think that republicans will do it now? No.
The issue that faces us is this, even if a piece of legislation passes that is watered down and says that assault weapons must have universal background checks for safety against mental health lists and high capacity magazines can no longer be used. This would seem like a small win/small loss for us, but would be sufficient for a legal executive order to be used…to “clarify” and “further” an existing law. Even without this legislation there are enough laws on the books to make this possible without that sort of legislation.