Tag archives: executive power

The Constitution and Executive Orders

by Rob Schwarzwalder

November 20, 2014

Family Research Council does not take a position on immigration reform. We’ve got enough on our plate, from protecting unborn children and their mothers from a predatory abortion industry and sustaining traditional marriage as the foundation of our culture to protecting religious liberty as the “first freedom” of our republic.

However, we take a strong position on the Constitution: We believe in it. We agree with the Founders that a written text contains objective meanings and that, to borrow a phrase from Jefferson, neither an activist judiciary nor an impatient president has a right to turn the Constitution into a “thing of wax.”

That’s why conservatives have every right to be concerned, even alarmed, by the President’s pending announcement of an Executive Order on U.S. immigration policy.

The Constitution invests the President with the authority to enact policies to ensure the faithful execution of laws passed by Congress and signed into law by the Executive (Section 3, Article II), and the “executive power” (or “vesting” power) granted the President (Article II, Section I) universally is recognized by constitutional scholars as involving only execution of federal laws, removing from the Executive Branch those officers who serve at the President’s discretion, and the formation and execution of foreign policy.

Then-Supreme Court Justice Robert Jackson in Youngstown Sheet & Tube Co. v Sawyer (1952) offered a three-fold test for whether an Executive Order is valid:

  • 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.”
  • 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.”
  • 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 … 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.”

The operative phrase in the above bullets is in the third paragraph: “measures incompatible with the expressed or implied will of Congress.” Clearly, as National Affairs’ Andrew Evans writes, “President Obama’s executive order is intended as a substitute for a law that Congress has not passed.

Finally, federal Courts have ruled that Executive Orders that surpass the express intent of Congress can only be executed in times of national emergency. Even then, according to the

U.S. Code, “When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act. Such specification may be made either in the declaration of a national emergency, or by one or more contemporaneous or subsequent Executive orders published in the Federal Register and transmitted to the Congress.

In other words, even in the extreme event of a national emergency, the President has to justify by what authority he is declaring such emergency. And clearly, while both legal and illegal immigration policy involve a host of difficult issues, the Administration has not demonstrated, nor can it demonstrate, that any such emergency exists. If it did, why did the President – as he himself put it – wait a full year for Congress to act?

Legal scholar William J. Olson and Rutgers University historian Alan Woll have rightly noted that “Powers were separated not to make government more efficient but to restrain the natural bent of men, even presidents, to act as tyrants.” Mr. Obama hasn’t gotten what he wants, so he is acting like a monarch unconstrained by legality. This is not constitutional, republican governance. It is something else altogether – something that should evoke in everyone who values his Constitution-based liberty apprehension about what might come next.

Obama Will Now Aggressively Use Executive Power

by Chris Gacek

February 16, 2010

A deeply worrisome article appeared in the New York Times on Saturday (2/13/10). It has received much attention on Mondays radio programs. The article by Peter Baker is entitled Obama is Making Plans to Use Executive Power for Action on Several Fronts. Baker tells us that the President is preparing an array of actions using his executive power to advance energy, environmental, fiscal, and other domestic policy priorities. And Baker continues with this observation, Any president has vast authority to influence policy even without legislation, through executive orders, agency rule-making and administrative fiat.

Translation: now that various Obama legislative (i.e., democratic) efforts have failed, it is time to force his policies on the nation through the diktat available to the head of the American federal administrative state. Of all the items mentioned in the article, the most destructive is probably the Administrations plan to begin regulating carbon emissions via the Environmental Protection Agency. This will be enormously costly for the American economy, and it comes at a time when the science supporting man-made climate change is collapsing. (See these articles as evidence: here, here, here, here and here (listed on Mark Levins website.) The collapse of scientific support may provide some minimal chance that the federal courts might block or alter EPAs rulemaking efforts, but EPA clearly has the upper hand in any litigation. Congress needs to eliminate EPAs authority to regulate carbon emissions until some scientific clarity emerges.

In a slightly differently category is the Administrations apparent decision to stop enforcing the militarys Dont Ask, Dont Tell which is statutorily mandated and has been in effect for approximately 16 years. It seems axiomatic that if the administration wants to change the policy, Congress needs to change the law.

The article deals at length with presidential recess appointments, and President Obamas threat to make use of them. The use of holds by members of the Senate seems to have gotten out of hand. All that said, the appointment power is far different from unilateral executive branch lawmaking which was never remotely considered by our Founding Fathers. And, here, we see plans for this constitutional abuse to be taken to new levels.

America is rapidly becoming a judicial and bureaucratic oligarchy. This institutional development is a threat conservatives and libertarians need to focus on much more seriously. This development is even more dangerous when coupled with the crony capitalism (corporatism) that is emerging from government ownership or subsidization of American industries. The United States is beginning to resemble the corrupt England of George IIIs era where commercial monopolies were sold by the Crown drawing the ire of the American colonists and men like Adam Smith.

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