Obama's Ace: The Executive Order

Posted: Jan 23, 2013 8:00 AM


President Obama has already displayed a keen eye for wielding executive authority when Congress won’t act. Where will he take this in a second term?


Excerpted from Townhall Magazine's February feature, "Obama's Ace: The Executive Order," by Joel Gehrke:

"We can’t wait for an increasingly dysfunctional Congress to do its job,” President Obama said in October 2011, after the legislators refused to pass his latest stimulus bill, The American Jobs Act. “Where they won’t act, I will.” Two hundred years ago, a president who claimed that he could implement laws Congress refused to pass might have gotten laughed out of town by the revolutionaries who repudiated a king and founded a representative government.

Times have changed. “Stroke of the pen, law of the land— kinda cool,” then-Clinton aide Paul Begala said in 1998. A century of presidential power-grabs and congressional weakness has distorted the separation of powers to the point that presidents possess a variety of instruments to implement their policies.

Presidential memoranda, executive orders, or proclamations— the difference between these instruments is “more a matter of form than of substance,” the Congressional Research Service explained in a 2010 report. “All three may have the force and effect of law, requiring courts to take judicial notice of their existence.”

American presidents since Abraham Lincoln have issued 13,689 executive orders. The U.S. Supreme Court has overturned two. Even though most orders pertain to uncontroversial issues that fall well within the authority of the president, that success rate still testifies to the broad latitude afforded presidents in shaping policy.

“Ours is not a government of one, but it will become that if we allow the president to behave as if ours is a government of one,” Republican Sen. Mike Lee of Utah warned in an interview with Townhall, though he also emphasized the constitutional validity of most presidential directives.

Subtle Seizure

The authority for such orders derives from the enjoinder in Article II, Section Three of the Constitution that chief executives must “take care that the laws be faithfully executed.” Presidents since George Washington have relied on a variety of directives to fulfill this obligation.

At the beginning of the 20th century, Theodore Roosevelt— the progressive Republican who organized the modern system of executive orders and applied the numbering system retroactively to Lincoln—brought to the White House a novel view of presidential authority.

“The most important factor in getting the right spirit in my Administration,” Roosevelt wrote in his autobiography, “was my insistence upon the theory that the executive power was limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by the Congress under its Constitutional powers.”

The Supreme Court did not curb this expansive view of presidential power for decades. Franklin Delano Roosevelt was able to place tens of thousands of Japanese Americans into “War Relocation Camps” by executive order, but Harry Truman learned during the Youngstown case in 1952 that he couldn’t seize 22 steel mills for the federal government.

To define the limits of presidential authority, Justice Robert Jackson articulated three tiers of executive power in his concurring opinion on that case, which remains influential. He explained that the president is on the weakest constitutional ground when contravening Congress, stronger when Congress has not denied the executive the particular authority, and strongest when acting “pursuant to express or implied authorization of Congress.”

Unfortunately, Jackson’s rubric cannot restrain presidential power if Congress avoids its constitutional obligation to legislate.

“What happens when Congress delegates what is essentially legislative power to the executive branch or to the federal regulatory agencies?” Dr. Paul Moreno, a constitutional history professor at Hillsdale College, told Townhall.

For instance, the 2,700-page Affordable Care Act contains over 2,500 references to the secretary of Health and Human Services. “On 139 occasions, the law mentions decisions that the ‘Secretary determines,’” The American Spectator noted.

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