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VIEWPOINT: What are executive orders?

One of the issues in the 2016 Presidential campaign was the use of executive orders by then President Barack Obama.

An executive order is loosely defined in the dictionary as an order from the President or a federal government agency which has the force of law.

In the first 10 days in office, President Donald Trump had issued a number of executive orders.

The U.S. Constitution does not expressly allow Presidential executive orders. However, during U.S. history, executive orders have been issued by nearly every President, including George Washington, Abraham Lincoln (Emancipation Proclamation), Harry Truman (federal control of steel mills), Bill Clinton (1999 Kosovo War), Franklin Delano Roosevelt (internment of Japanese-Americans), and Dwight Eisenhower (desegregation of public schools).

Critics of Presidential executive orders argue that such orders violate the Constitution and our three-branch form of government since Congress, as the lawmaking body, has the sole authority to make laws. A scorecard reveals nearly every President has issued executive orders: FDR issued 3,721, Ronald Reagan 381, Bill Clinton 364 and Barack Obama 276. Proponents of executive orders argue that there is a long history of such orders where Congress is deadlocked or unwilling to address an important issue or emergency (as in Category 2 below). I express no opinion on executive orders, but I will briefly discuss how the U.S. Supreme Court has addressed them.

In the Youngstown Sheet case, the Supreme Court was asked to judge the validity of President Harry S. Truman's executive order calling for the seizure of steel mills just before a nationwide strike. "The indispensability of steel as a component of substantially all weapons and other war materials led the President to believe that the proposed work stoppage would immediately jeopardize our national defense and that governmental seizure of the steel mills was necessary in order to assure the continued availability of steel." President Truman's rationale for the order did not withstand judicial scrutiny.

In holding that President Truman's order was unlawful, the Supreme Court explained that "the President's power, if any, to issue (an executive) order must stem either from an act of Congress or from the Constitution itself." The Court concluded that no congressional act authorized President Truman to seize the mills; President Truman, in fact, did not rest on such congressional authorization. Instead, he relied on what he considered to be his presidential power "implied from the aggregate of his powers under the Constitution." The Court rejected this argument.

Justice Robert Jackson, in a concurring opinion — meaning an opinion that was not joined by a majority of the Justices and, therefore, not binding — classified Presidential powers into three general categories, which are summarized below. Even Jackson admitted these three categories were "somewhat over-simplified." And, as the Court stated in Dames & Moore v. Regan, a case decided after Youngstown Sheet, "it is doubtless the case that executive action in any particular instance falls, not neatly in one of three pigeonholes, but rather at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition." Despite its oversimplification, Jackson's general framework for assessing the validity of an executive order is useful and often used.

Category 1: "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. ... If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power."

Category 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." Under these circumstances, a President's actions can derive support from "congressional inertia, indifference or quiescence."

Category 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 have continued to struggle in identifying the precise scope of presidential powers. As the Court confessed in Dames & Moore, each challenge to an executive order is "only one more episode in the never-ending tension between the President exercising the executive authority in a world that presents each day some new challenge with which he must deal and the Constitution under which we all live and which no one disputes embodies some sort of system of checks and balances."

Or, as Jackson put it: "A judge ... may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves."

In summary, the debate over presidential executive orders will not end with the election of a new president given our history. Many such orders end up on the docket of the federal courts, which have to apply legal principles that are not always crystal clear. This is just another example of the checks and balances of our three branches of government which have served our democracy well.

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