Understanding Limits of Executive Orders

There is no constitutional provision that explicitly permits the president to make executive orders. Originally, executive orders were issued to instruct and direct officers of the executive department as to their duties. Over the years, their use has expanded. Nevertheless, to be constitutional, a presidential executive order must still find support either in a grant of power to the president by the Constitution, or in a congressional grant of power to the president by a law enacted by Congress.

As noted, the Constitution does not specifically say that the President has power to make Executive Orders. It does, however, provide that the president is commander-in-chief of the U.S. Army and Navy. Implied within his power as commander-in-chief is the power to direct the Army and Navy. When he sends troops into battle, for example, he does that by an executive order which is a presidential directive.

Some executive orders may be relatively minor as in the case of President Lincoln calling for the observance of a day of Thanksgiving, or of tremendous significance such as Mr. Lincoln’s Emancipation Proclamation, which was entered by President Lincoln acting as commander-in-chief as a war (rebellion suppression) measure. Executive orders, properly entered under the president’s constitutional authority, or under a grant of authority pursuant to congressional law(s), have the force of law. But they are not laws.

In 1950, the U.S. was involved in a “police action” against North Korea. When the steel workers threatened a nationwide strike, which President Truman believed would hurt the war effort, Mr. Truman decided to seize (“federalize”) steel production facilities to keep them operating with management and workers in place to run the plants, but under federal direction.

Mr. Truman argued to the Supreme Court that he acted under the president’s “inherent authority in response to a National Emergency.” That lead to the U.S. Supreme Court’s holding in Youngstown Sheet & Tube Co. v. Sawyer, which is regarded as the leading case on the president’s use of executive orrders.  The concurring opinion therein, written by Justice Robert Jackson, which has become the most respected of the opinions rendered therein, states

“1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all [the Constitutional Authority] that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said ...  to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

“2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.

“3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.  Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

When Congress passed the Affordable Care Act, it said that  the employer mandate shall take effect on Jan. 1, 2014. The president’s action extending (amending) that date is “incompatible with the expressed will of Congress, and his power is at its lowest ebb” -- unless the act grants the president that power.

The same is true when Congress passes a law that establishes a prescribed mode for immigration.  Unless an act of Congress grants the president power to establish a different mode, the president has no power to prescribe an alternative mode.

The same president who can override such laws, can override the will of the voters at the next election and decide that he shall remain in office because he thinks what he is doing will help families across the country. Or because it’s good for workers, employers and the middle class.



Posted Online:  Nov. 15, 2014 12:00 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea