Thursday, January 17, 2013

The Executive, Continued

I had planned on making this post a continuation of our read through the Constitution, but one reader asked me about part of the last post, specifically, about executive orders.  With that in mind, I'd like to explore that a bit, as it is a timely topic in the news today.

Yesterday, January 16, 2013, President Obama signed a series of executive orders regarding gun control.  What IS an executive order, anyway?  Is it Constitutional?  Does it have the force of law?  How far can a president go with such an order?  Obviously, this is a series of questions that can go on forever, but let's take at least a brief look:

What is an executive order?  Generally speaking, it's a directive from the president that clarifies or focuses the action of Congress on an executive agency.  The orders are not laws, as only Congress has the power to pass laws, but they can be far-reaching and effectively regulate a great deal without actually being laws.  Therein lies the debate over executive orders.

Are executive orders Constitutional?  This may sound like a politician's answer, but it seems to be "maybe"?  The Constitution itself is vague, almost silent, on the subject, other than a brief phrase in Article II, Section 3 that says "he shall take Care that the Laws be faithfully executed".  It's a pretty flimsy basis on which to invest even more power in the executive, but it has become accepted practice, with certain boundaries.  If the president were merely clarifying acts of Congress to the executive agencies, there might be little controversy.  So, what are some examples of orders that may overstep the bounds of the president's authority?

All presidents have used executive orders to one degree or another, but until the early 20th Century, most were unwritten and fairly benign, seen only be the agencies to which they were directed.  Until 1952, there were no actual guidelines for them, either, until President Truman's plan to nationalize steel mills during the Korean War was struck down by the Supreme Court as an attempt to make, rather than clarify, law.  Other sweeping executive orders that were controversial for their large scope (either for good or for ill) include Truman's order to integrate the armed forces, Eisenhower's order to integrate schools and FDR's order which led to the internment of Japanese-Americans during World War II.

So, what can be done about unpopular executive orders?  The Supreme Court can find them unconstitutional (though it has only done so twice).  Congress cannot veto them, though, as veto is an executive function. Congress can, however, vote to stop funding for any executive action, though the funding action itself can be vetoed by the president (and therefore require require a two-thirds vote in Congress to override the veto!).

So, what does this have to to do with today's issues?  President Obama issued executive orders yesterday that dealt primarily with better enforcement of existing laws, but not anything that could be construed as making new laws.  That can only be done by Congress.  The fact that 23 new executive orders were issued is remarkable, though.  I'm not sure what the one-day record is, but this must be a contender.

Certainly, every president must have had some issues which he wished he could push through without Congressional approval, but the fact that the Constitution limits the power of the president AND the Congress (at least, in theory), ensures that neither gets too powerful, yet neither is relegated to insignificance.

Next up (barring any other breaking news) - the branch that watches over the other two and hold the most cards in terms of determining the constitutionality of laws and orders: the Judiciary.

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