Executive order (United States): Wikis

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Leland-Boker Authorized Edition of the Emancipation Proclamation, printed in June 1864 with a presidential signature

An executive order in the United States is an order issued by the President, the head of the executive branch of the federal government. In other countries, similar edicts may be known as decrees, or orders-in-council. Executive orders may also be issued at the state level by a state's Governor or at the local level by the city's Mayor. U.S. Presidents have issued Executive Orders since 1789, usually to help officers and agencies of the Executive branch manage the operations within the Federal Government itself. Executive orders do have the full force of law since issuances are typically made in pursuance of certain Acts of Congress, some of which specifically delegate to the President some degree of discretionary power (delegated legislation), or are believed to have their authority for issuances based in a power inherently granted to the Executive by the Constitution. It is these cited or perceived justifications made by a President when authoring Executive Orders that have come under criticism for exceeding Executive authority and have been subject to legal proceedings even at various times throughout U.S. history concerning the legal validity or justification behind an order's issuance.

Contents

Basis in U.S. Constitution

U.S. Presidents have issued Executive Orders since 1789. Although there is no Constitutional provision or statute that explicitly permits Executive Orders, there is a vague grant of "executive power" given in Article II, Section 1, Clause 1 of the Constitution, and furthered by the declaration "take Care that the Laws be faithfully executed" made in Article II, Section 3, Clause 4. At the minimum, 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,[1] the intent being to help direct officers of the US Executive 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.[2]

Other types of orders issued by 'the Executive' are generally classified simply as administrative orders rather than Executive Orders.[3] These are typically:

Presidential directives are considered a form of executive order issued by the President of the United States with the advice and consent of a major agency or department found within the Executive branch of government.[4] Some types of Directives are:

History and use

Until the early 1900s, Executive Orders went mostly unannounced and undocumented, seen only by the agencies to which they were directed. However, the Department of State instituted a numbering scheme for Executive Orders in 1907, starting retroactively with an order issued on October 20, 1862, by President Abraham Lincoln. The documents that later came to be known as "Executive Orders" probably gained their name from this document, captioned "Executive Order Establishing a Provisional Court in Louisiana."[3]

Until the 1950s, there were no rules or guidelines outlining what the president could or could not do through an Executive Order. However, the Supreme Court ruled in Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952) that Executive Order 10340 from President Harry S. Truman placing all steel mills in the country under federal control was 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.

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.

Criticisms

Critics have 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.[5] Large policy changes with wide-ranging effects have been effected through executive order, including the integration of the armed forces under Harry Truman and the desegregation of public schools under Dwight D. Eisenhower.

One extreme example of an executive order is Executive Order 9066, where Franklin D. Roosevelt delegated military authority to remove any or all people (used to target specifically Japanese Americans and German Americans) in a military zone. The authority delegated to General John L. DeWitt subsequently paved the way for all Japanese-Americans to be sent to internment camps for the duration of World War II.

Executive Order 13233, which restricted public access to the papers of Presidents Reagan and George H.W. Bush, was more recently criticised by the Society of American Archivists and other groups, stating that it "violates both the spirit and letter of existing US law on access to presidential papers as clearly laid down in 44 USC. 2201–07," and adding that the order "potentially threatens to undermine one of the very foundations of our nation." Executive Order 13233 was later revoked by President Obama.[6]

Critics fear that the president could make himself a de facto dictator by side-stepping the other branches of government and making autocratic laws. The Italian philosopher Giorgio Agamben in particular has criticized the generalization since World War I of the use of executive orders or decrees by all Western democracies, declaring that this tends toward the constitution of a "permanent state of exception." The presidents, however, often cite executive order as the only way to clarify laws passed through Congress that often require vague wording to please all parties involved in their creation.

It is quite common for US Presidents to issue executive orders that instruct federal agencies to promulgate administrative regulations in order to circumvent the legislative process in the US Congress altogether, though, as alluded to above, this can violate the US Constitution in a number of ways. US Presidents are quite aware that US congressional politics can defeat or otherwise prevent the passage of legislation presidents deem politically important. In this regard, US Presidents have issued executive orders calling upon federal agencies, such as the US Environmental Protection Agency (EPA) and the United States Department of Energy (DOE), to issue administrative regulations where the political process of adopting congressional legislation necessary to implement multilateral environmental regulatory treaty obligations a president wishes for the US to assume would prevent US ratification of/accession to that treaty. US Presidents, furthermore, may use an executive order or a presidential memorandum to ensure that federal courts abide by international tribunal rulings interpreting the provisions of an international treaty. Perhaps, President Obama has in mind to pursue one or both of these uses of executive orders to ensure the US abides by any successor agreement to the Kyoto Protocol to the United Nations Framework Convention on Climate Change (UNFCCC) and by the United Nations Convention on the Law of the Sea, even though the US has remained a non-party to both treaties for political reasons.[7] .[8]

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Legal conflicts

To date, U.S. courts have overturned only two executive orders: the aforementioned Truman order, and a 1996 order issued by President Clinton that attempted to prevent the U.S. government from contracting with organizations that had strike-breakers on the payroll.[9] Congress may overturn an executive order by passing legislation in conflict with it or by refusing to approve funding to enforce it. 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.[10]

State governors' executive orders

Executive orders as issued by the governors of the states are not laws, but do have the same binding nature. Executive orders are usually based on existing constitutional or statutory powers of the Governor and do not require any action by the state legislature to take effect.

Executive orders may, for example, demand budget cuts from state government when the state legislature is not in session, and economic conditions take a downturn, thereby decreasing tax revenue below what was forecast when the budget was approved. Depending on the state constitution, a governor may specify by what percentage each government agency must reduce by, and may exempt those that are already particularly underfunded, or cannot put long-term expenses (such as capital expenditures) off until a later fiscal year. The governor may also call the legislature into special session.

There are also other uses for gubernatorial executive orders. In 2007 for example, the governor of Georgia made an executive order for all of its state agencies to reduce water use during a major drought. This was also demanded of its counties' water systems, however it is unclear whether this would have the force of law.

Presidential proclamation

A presidential proclamation "states a condition, declares a law and requires obedience, recognizes an event or triggers the implementation of a law (by recognizing that the circumstances in law have been realized)."[11] Presidents “define” situations or conditions on situations that become legal or economic truth. These orders carry the same force of law as executive orders – the difference between the two is that executive orders are aimed at those inside government while proclamations are aimed at those outside government. The administrative weight of these proclamations is upheld because they are often specifically authorized by congressional statute, making them “delegated unilateral powers.” Presidential proclamations are often dismissed as a practical presidential tool for policy making because of the perception of proclamations as largely ceremonial or symbolic in nature. However, the legal weight of presidential proclamations suggests their importance to presidential governance.[12]

Abraham Lincoln's emancipation proclamation (actually consisting of two executive orders) is one of America's most famous presidential proclamations.

See also

References

  1. ^ SCOTUS, Mississippi v. Johnson, 71 U.S. 475 (1866), The Supreme Court's decision held that the President has two kinds of task to perform: ministerial and discretionary. EOs help facilitate the execution of the Executive's ministerial duties.
  2. ^ SCOTUS, Myers v. United States, 272 U.S. 52 (1926), Majority Opinion.
  3. ^ a b Harold C. Relyea, Presidential Directives: Background and Overview, CRS Report for Congress #98-611, Nov. 26, 2008.
  4. ^ National Security Directives, San Diego State University, Presidential Documents, Retrieved 2009-12-07.
  5. ^ Gaziano, Todd F. (2001-02-21). "The Use and Abuse of Executive Orders and Other Presidential Directives". Legal Memorandum #2 (Heritage Foundation). http://www.heritage.org/Research/LegalIssues/LM2.cfm. Retrieved 2008-10-11. 
  6. ^ "Executive Order 13489 of January 21, 2009 — Presidential Records". http://www.whitehouse.gov/the_press_office/ExecutiveOrderPresidentialRecords/. Retrieved 2009-01-22. , Federal Register publication page and date: 74 F.R. 4669, January 26, 2009.
  7. ^ What Goes Around, Comes Around: How UNCLOS Ratification Will Herald Europe’s Precautionary Principle as U.S. Law, Working Paper and Abstract available online, Social Science Research Network (SSRN), Lawrence A. Kogan, CEO of the Institute for Trade, Standards and Sustainable Development (May 5, 2009); [1] 7 SANTA CLARA INT’L L., Lawrence A. Kogan (October 7, 2009)
  8. ^ “Ecosystem-Based Management”: A Stealth Vehicle To Inject Euro-Style Precaution Into U.S. Regulation, Lawrence A. Kogan, Washington Legal Foundation [2] (July 10, 2009).)
  9. ^ Catherine Edwards, "Emergency Rule, Abuse of Power?," Insight on the News, August 23, 1999, Pg. 18
  10. ^ Harold Hongju Koh, The National Security Constitution: Sharing Power after the Iran-Contra Affair, 1990, pg. 118–19
  11. ^ Philip Cooper. 2002. By Order of The President. University of Kansas Press. Page 116.
  12. ^ Presidential Proclamations Project, University of Houston, Political Science Dept., Retrieved 2009-12-07

Further reading

  • Cooper, Phillip J., By Order of the President: The Use and Abuse of Executive Direct Action, Kansas State University, University Press of Kansas, 2002.
  • Howell, William G., Power without Persuasion: The Politics of Direct Presidential Action, Princeton University Press, 2003.
  • Mayer, Kenneth R., With the Stroke of a Pen: Executive Orders and Presidential Power, Princeton University Press, 2002.
  • Warber, Adam L., Executive Orders and the Modern Presidency: Legislating from the Oval Office, Lynne Rienner Publishers, 2006.

External links


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