Executive Orders: The Power of the President’s Pen

Executive orders can be as socially important as integrating the armed forces or simply a means of calming public anxiety in the face of the “Y2K problem.” They can be White House effective tools to block financing to terrorist organizations or authorize controversial (and later found to be illegal) means for treating detainees. Recent talk on the political circuit has many wondering what President-elect Obama can and will do with his newfound executive power. This begs the legal question: how much power does the president really have to act without Congress? And what does a presidential transition mean for the nearly 300 executive orders bearing President Bush’s signature?

Generally, executive orders don’t get much public visibility. Yet, they represent a significant authority for the president to manage the executive branch departments and agencies – both in organization and policy. Because a president acts alone when signing an executive order, the system has room for potential abuse. Congress and the courts can stop presidents that go too far, but history shows that this rarely happens. Most often, it is up to future presidents to reverse or adjust the policies of executive orders he or she doesn’t agree with. In a time where the current administration has pushed executive power to its furthest, executive orders are a legal tool the public should take notice of.

Article II: Power to the POTUS

An executive order (E.O.) is one type of a presidential directive. Article II of the U.S. Constitution doesn’t mention executive orders, but it does provide an expansive mandate in stating that “[t]he executive power shall be vested in a President….” This is a broad grant of power and is the basis for presidents’ power to invoke executive orders. The orders are laws of “of general applicability and legal effect.” The term “executive order” was not a part of the political lexicon until 1862, when such orders where formalized by a counting system beginning with “1” (President Bush signed Executive Order 13477 on October 31, 2008). A signed order is published in the Federal Register and generally remains in effect until superseded by another order, although some orders are written to expire at a prescribed time.

While the mandate of Article II seems broad, it also limits the president’s power to only directing the actions of the executive branch. For example, orders like President Bush’s likely-to-be-changed E.O. 13435 (regarding the limited use of stem cells in research) have a limited effect because they only reach government agencies, here the National Institutes of Health (NIH). At the same time, this example demonstrates that the power of an order can be greater than it appears on its face. Several private research companies depend on NIH funding, so if the government cuts off funding for a certain type of research, the private sector might not be able to continue the work on their own.

By definition an executive order is issued by the executive, leaving the process relatively unchecked. The only mandate comes from Executive Order 11030, which at least forces the president to let a few lawyers from the Department of Justice and the Office of Management and Budget take a chop at it before the president can issue the order. This means that an executive order is often signed and in effect before any outside legal debate is possible. When the president abuses this power, Congress can subvert the order by passing a law to preempt it. However, this remains unlikely considering that it has happened only about 20 times in 100 years and that the president still has the power to veto the law from Congress. Since the process is largely unregulated by Congress, it is up to the courts to rule that an E.O. exceeds the president’s executive authority.

The Executive is not a Legislator…

The initial function of the E.O. was merely administrative (appointing personnel or reorganizing executive agencies), but presidents have expanded their use of executive orders. Usually presidents have operated within their legal bounds, like when dealing with foreign policy and national security issues. This was not the case in Youngstown Sheet & Tube Company v. Sawyer, where the Supreme Court ruled that the president exceeded those bounds. This case marked the first time that the judiciary completely rejected an executive order.

In April of 1952, on the eve of a national strike planned by steel workers, President Truman signed Executive Order 10340, which directed Secretary of Commerce Sawyer to seize control of certain steel companies and plants to maintain their continued operation. At the time the nation was embroiled in the Korean War. Truman justified E.O. 10340 on the basis of a previously proclaimed national emergency, and argued that he was trying to strengthen U.S. defenses against national security threats. Basically, he claimed he was merely exercising his executive authority to protect the country.

The steel companies in question sought an injunction against the government to prevent the seizure and the U.S. Supreme Court quickly took up the question. The Court struck down the E.O., holding that the president was lawmaking, which is clearly a power reserved to Congress under Article I. The Court rejected Truman’s national security justification, finding that domestic production of equipment and supplies for war was not close enough to the actual conflict.

…Nor is he Above the Law

In two more recent cases, the presidents’ orders were rejected for conflicting with current law. In 1995, President Clinton signed Executive Order 12954 requiring executive agencies to withhold contracts from employers replacing striking employees. Secretary of Labor Reich was ordered to set specific regulations so that replacement workers, who were presumably less efficient, would not execute government contracts, resulting in higher costs of goods or services. Several organizations sued for injunctive relief arguing that the order violated the National Labor Relations Act (NLRA). The Court of Appeals for the District of Columbia held that Congress passed the NLRA with the intent that certain labor relations would be unregulated. Since the Clinton E.O. was regulatory by its nature, the NLRA – a legislative act of Congress – preempted the E.O. (the government did not seek Supreme Court review of the decision).

Ten years later, the Supreme Court struck down an executive order from President Bush that ordered the Secretary of Defense to convene military commissions to try foreign enemy combatants detained at Guantanamo Bay. In Hamdan v. Rumsfeld, nearly five years after Bush signed the order, the Court found that the procedures of the order violated the Uniform Code of Military Justice and Article 3 of the Geneva Convention. This case was different from prior E.O. cases because Congress had indirectly supported the order. Congress passed the Detainee Treatment Act of 2005, intending to prevent the Supreme Court from hearing any cases brought by Guantanamo detainees. Nevertheless, the Court found a basis for jurisdiction to hear the case and struck down the order.

Successful judicial challenges of executive orders are rare because the parties often lack standing to challenge the executive. In these few opinions, the courts have drawn some lines for how far an executive order can go and in other cases have rejected certain parts of executive orders. What is clear is that every order is good law until Congress or the courts say otherwise. Therefore, the focus is usually on what changes the next president will make.

POTUS Power in Action

It is no surprise that the Obama transition team is reviewing nearly every order by the Bush administration and there will certainly be more to review from President Bush’s final days in office. Certain superseding executive orders are predictable because of their adherence to party platforms. For example, President Reagan signed an order to advance the “Mexico City” policy of barring taxpayer dollars from funding abortion-related activities by international organizations. President Clinton rescinded the order, but President Bush re-ordered and expanded it.

Early orders will likely be a reflection of President-elect Obama putting his imprint on the executive, much like President Bush did with his first E.O., which established an office for faith-based initiatives. In his first interview since the election, President-elect Obama specifically mentioned closing the Guantanamo Bay prison and ending any question of U.S. torture tactics. For now, the question is: What events or crises will take place that challenge President-elect Obama to test how far he can go with one stroke of the pen?

Though the executive order is a tool of necessity, the danger of the president abusing the power is inherent in the process. Where Congress is silent, it is up to the public to challenge executive orders that reach too far, and to the courts to find standing so challenges can go forward on the merits. If the recent history of the Clinton and Bush presidencies is any indication, there will be roughly 40 executive orders signed by President Obama each year. Let the scrutiny begin.