February 1, 2014
Obama and Executive Orders
By Richard Winchester
Barack Obama announced in his 2014 State of the Union Address that he intends to bypass Congress "whenever and wherever" to achieve his extreme left-wing goals. Evidently, Obama intends to govern by executive orders (EO's).
EO's are usually defined as directives that either implement or interpret a federal law, a constitutional provision, or a treaty.
Obama has threatened to issue executive orders to make policy, a different use of them.
A recent Washington Post/ABC News poll (1/20-23/14) found that 52% of the public approve of a president's use of EO's, while 46% oppose. Opinions about EO's are highly dependent on partisanship. Sixty-nine percent of Democrats approve of EO's, and 30% oppose. Republicans divide 63% in opposition, while 36% approve. Independents are evenly split.
(One wonders how much people really know about EO's, but let that question pass for now.)
Could it be that Obamians anticipate confronting Republicans in control of both houses of Congress for the last two years of his presidency? If so, they face the prospect of either lame-duck impotence or ruling by extra-constitutional means.
What does the Constitution stipulate as a president's legitimate powers? How presidents have used executive orders, and what the courts have ruled about a president's use of EO's?
Article II, Section 1, paragraph 8 of the Constitution requires all newly elected or re-elected presidents, before taking office, to pledge to "preserve, protect and defend the Constitution ..."
In addition to the second paragraph of Article I's Section 7, which empowers the president to approve or veto bills passed by Congress, Sections 2 and 3 of Article II specify the executive powers granted to the president.
The president is the commander-in-chief of U.S. military forces and of state "militias" when in national service. He can grant reprieves and pardons for crimes, "except in Cases of Impeachment." He can make treaties, appoint ambassadors and other foreign service officers, justices of SCOTUS and "inferior" federal courts, and other federal officials, provided two-thirds of the Senate approve. (The appointment power implies the power to remove.) The president is periodically required to give Congress information about the "State of the Union," and "recommend" legislation. He "shall take Care that the Laws be faithfully executed...."
A president has other constitutionally stipulated powers, but they are mostly of a "bookkeeping" nature.
How is it possible, then, that contemporary presidents have accumulated far greater powers than the Constitution's framers anticipated? (Alexander Hamilton wanted "energy in the executive" but if you read his comments on the Constitution's grants of presidential powers [in The Federalist Papers #73-77], you realize how the chief executive's powers have increased tremendously since 1787.) Partly, modern presidents have acquired new powers because the national legislature has authorized grants of new responsibilities to the president. (One thinks of the Employment Act of 1946 or of the Federal Reserve Act of 1913.) Crises, such as the Civil War, world wars I and II, Korea, Vietnam, and major national calamities such as the Depression and the "Great Recession" of 2007-2008, have enabled chief executives to acquire new powers. (Recall Abraham Lincoln's suspension of the writ of habeas corpus during the Civil War, or Congress' multiple grants of authority to Franklin D. Roosevelt as the nation sought to overcome the Depression.) A president also has "implied powers," i.e., the ability to do things not specifically authorized by the Constitution, but which can be logically inferred from its specific grants. (Two examples are the capacity to direct military strategy in wartime and to formulate foreign policy.)
Perhaps the most controversial of extra-constitutional presidential powers are executive orders. EO's may stem from explicit congressional statutes or those parts of the Constitution pertaining to the president's obligation to "preserve, protect and defend the Constitution," or her/his executive power in general, or responsibility for the "faithful" execution of the laws.
Every president from George Washington on has issued at least one EO, although recent presidents have been more likely to do so. Approximately 15,000 EO's have been issued, with the bulk coming since Teddy Roosevelt's presidency. Initially, EO's dealt with routine administrative concerns. Recently, they've been used to flesh out policies and programs.
An executive order does not require congressional approval. Hence, EO's can be potential tools for presidential policy-making.
Are there any limits on a president's capacity to issue an EO? Congress could overrule an executive order, but that would entail overriding the inevitable presidential veto. (Since a congressional override of a veto requires extraordinary majorities in both houses, they are rare.)
The courts have seldom ruled on EO's' constitutionality. Perhaps the best instance of SCOTUS limiting an EO is Youngstown Sheet & Tube Co. v. Sawyer (343 U.S. 579 ), in which a majority of the justices ruled (using varying language) that Harry Truman's EO nationalizing American steel companies during the Korean War was illegal. The gist of the SCOTUS decision was that, unless a president could find specific grants of power under Article II, or had congressional authorization, he could not seize private property.
Does the requirement that an EO be based on either the Constitution or congressional statute mean Obama's ability to use them to further subvert the Constitution is blunted?
Perhaps, but consider the following.
Some time would probably pass after Obama issues an executive order and SCOTUS' decision about its fate. ObamaCare, for example, was signed into law on March 23, 2010, but SCOTUS did not decide its constitutionality until June 28, 2012. A great deal of constitutional damage -- which might be impossible to rectify -- could occur before an Obama EO was outlawed.
Mention its decision on ObamaCare, and you realize SCOTUS may or may not be a source of relief from Obama's autocratic tendencies. SCOTUS becomes an even weaker bulwark against presidential overreach if Obama were to appoint one or two more justices.
Historically, SCOTUS tries to avoid direct confrontation with a president. SCOTUS has rarely directly ruled against a sitting president -- the most notable exception being U.S. v. Nixon (418 U.S. 683 ). If possible, it has required action by a presidential subordinate. In the "Steel Seizure" case (Youngstown), for example, Charles W. Sawyer was Truman's Secretary of Commerce. SCOTUS' decision was directed at him.
Given the linguini spines of many GOP legislators, and the Democrats' overwhelming endorsement of Obama's intention to bypass Congress, and Congress becomes an improbable bastion of constitutionality.
Don't hold your breath waiting for impeachment and conviction. The best tactic is to start decrying any Obama-issued EO, to make that strategy as politically costly as possible. (Democrat senators from "Red" states who are up for re-election next fall are already running away from Obama.) Make enough noise, and maybe a few other Democrat pols will get the message. What might the Obamians do if they have no, or very few, political allies?
Be advised, however, that desperate ideologues confronted by dire situations may do dastardly things. To paraphrase the late actress Bette Davis (in All about Eve), buckle up, we may be in for a bumpy ride.