Executive order (United States)
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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. The term "Executive Orders" and the numbered list of them were created in 1907, but U.S. Presidents have issued instructions that are retroactively labeled Executive Orders since 1789, usually to guide officers and agencies of the Executive branch in managing the operations within the Federal Government itself. Executive orders can have the full force of law if they are made in pursuance of certain Acts of Congress, some of which specifically delegate to the President some degree of discretionary power (delegated legislation). Other Executive Orders not authorized by Congress are claimed 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.
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[edit] Basis in U.S. Constitution
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 2, 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, that has been construed as justification for the legal weight of Executive orders. Presidents have used this Constitutional reasoning as a basis for an authorization that allows for the issuance of Executive orders as part of carrying out the President's sworn duties,[1] the intent typically being to help direct officers of the US Executive carry out their delegated duties as well as for compliance with current statute in the regulating of normal operations of the Federal Government -- in spite of the fact, Article I, Clause 1 specifically grants all federal legislative authority to the United States Congress:"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."
For this reason, many Executive Orders cite authorization from specific acts of Congress rather than vague or perceived powers somehow granted to the Executive without explicitly saying so in the Constitution. Those Executive Orders that are not authorized through Congressional acts frequently contain some other purported justification such as the reference above to "executive power" in Article II, Section 1. These justifications have largely gone untested by the Courts for their validity however.
The President does, of course, have the authority to issue orders to officers and employees of the executive branch and to penalize non-compliance by removing such officers and employees from office. This is much the same power that the president of a private company has over his employees to dismiss them if they do not follow his instructions. Such authority may be proper and Constitutional provided that the President does not order executive branch employees to carry out unlawful or unconstitutional acts.[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 Determination
- (Presidential) Memorandum
- (Presidential) Notice
- National Security Directives
- Homeland Security Presidential Directives (presidential decision directives)
[edit] History and use
Until the early 1900s, the term "Executive Orders" had not even been invented. Presidential instructions to executive branch staff that would later be characterized as "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 other than, of course, the US Constitution which reserved all federal legislative authority to Congress. This issue was paramount in the Supreme Court ruling 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 under which they are acting when issuing new Executive Orders.
Despite the provisions of Article I, Section 1 of the US Constitution that reserves all federal legislative authority to congress, Presidents have increasingly used Executive Orders as if they were equivalent to an act of Congress. Presidents have even issued Executive Orders to start entire wars despite the fact that Article I, Section 8 of the US Constitution specifically reserves to Congress the sole authority to declare war.
Wars begun by Executive Order include 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. In fact, the US Constitution grants no war-making powers whatsoever to the President, only to Congress. Without the War Powers Resolution or other authorizing resolutions from Congress, Presidents lack any Constitutional war-making powers despite their far-reaching claims to the contrary. Congress has been notably unwilling to press this issue for political reasons, especially when a President has already ordered troops into battle and they have obeyed that order.
[edit] 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.
Presidents, however, often cite executive order as the only way to clarify laws passed through Congress that required vague wording to please all parties involved in their creation. In this regard, when the political process of adopting congressional legislation would prevent US ratification of/accession to treaties of importance, 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 instead issue administrative regulations. 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.
[edit] 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 strikebreakers on the payroll.[6] 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.[7][edit] 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.
[edit] Presidential proclamation
A proclamation issued by a president. Proclamations generally are defined as, "The act of causing some state matters to be published or made generally known. A written or printed document in which are contained such matters, issued by proper authority; as the president's proclamation, the governor's, the mayor's proclamation." [8]In the United States, the president's proclamation has not the force of law, unless when authorized by congress; such as if congress were to pass an act, which would take effect upon the happening of a contingent event, which was to be declared by the president by proclamation to have happened; in this case the proclamation would give the act the force of law, which, till then, it wanted. Presidential proclamations are also frequently employed in the US to pardon persons who have been accused of crimes or misdemeanors.
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, they can be important.
Abraham Lincoln's emancipation proclamation (actually consisting of two executive orders) is one of America's most famous presidential proclamations.
