Executive Orders

Prolific use of  the Executive Orders started with Nixon and I'm just a bit amazed as to how many have been created. I can agree with the use in an emergency situation but have an issue with the President becoming Legislative in his actions. Maybe an Executive Order should have a sunset time limit placed on them until the Legislative bodies can address the issue. A Constitutional Amendment  was required for the prohibition of alcohol and remove that prohibition. Now Bernie Sanders says he will legalize marijuana with an Executive Order. Just using the legalization of marijuana as a contemporary example, I don't care one way or another. Should a President be allowed to create laws or is that the purpose of the Legislative boby?

So just a little background, the use of executive orders actually dates to Washington, not Nixon.  The idea being that a President needed to have broad authority.  In times past, it was also necessary for a President to be able to enact something akin to law when circumstances required but Congress was out of session.  Lincoln used this power extensively—I would actually say more extensively—than Nixon.  Lincoln committed numerous actions that were either unaddressed or flat out contradicted by existing law.

Executive orders are a sort of “law”, but Congress can easily override these actions, as can the court system.  Moreover, President X can make one such “law” and his successor, President Y can simply alter, change or abolish the executive order altogether.  Theoretically a President could just stamp out executive orders left and right, but Congress tends to get possessive of the ability to make law as that is the primary purpose of having a Congress in the first place.  There is even a phrase in politics:  live by executive order, die by executive order.  Not exactly original (what else would one expect from government), but descriptive.

Incidentally, all of the ostensibly illegal actions Lincoln undertook under the guise of executive orders were done when Congress was out of session.  As soon as Congress was re-established, it promptly retroactively approved of each action taken by Lincoln.  Alternatively, if a President Sanders were to legalize pot nationwide via executive order, his successor could rescind that order at any time.

So I am not exactly taking a stand other than to show how Presidents have always held this power.

Eric  

I guess I should have prefaced my "Prolific" use as my opinion as to the time of influx of executive orders. Washington's use was when the Legislative body was out of session so no issue as far as I can see. Requiring a Legislative approval would create a check and balance that I think should come with the use of Executive Orders. Any order that would create a chargeable offense or remove a chargeable offense is more than sort of a law I think.

Robert,

Oooooo, you got me thinking and can’t stop because you inadvertently brought up another issue I find troubling.

So the 18th amendment (prohibition) was a disaster.  It’s repeal in the 21st amendment was probably necessary.  I say probably because it did open a Pandora’s box that thus far has not grown out of control, but the ground may have been paved.

So in the surface, the 21st just looks like a big do-over.  The 18th was a disaster and needed to be undone.  Simply repealing the amendment seems like the quickest, most expedient way to do so.

The problem that I have is if we can repeal the 18th amendment, what other amendments could also be repealed?  How about the 1st amendment, which I personally think is the single most important freedom to be able to exercise in a democracy? How about the 13th?  I can’t imagine that could happen, but does the passage of the 21st amendment mean there is a legal way to reinstate slavery in the United States?  I certainly hope not, but on a legal, technical level, what part of the constitution prevents such a tragedy?  Again, I don’t think this is remotely likely, but the idea of a simple repeal does concern me more than a bit.

Food for thought,

Eric

Robert,

Fair assessment of President Nixon.  A moment that comes to mind was back in 1990 when Iraq invaded Kuwait.  There was absolutely nothing the United States could have done in a military sense that would have been both timely and meaningful.  Instead, President Bush issued two executive orders, freezings all Iraqi assets in the United States (there were billions of badly needed dollars in US banks), and instituted the first sanctions against Iraq.  Basically, it was something that could be done right away that at least had some practical and lots of symbolic purpose.

Actually, there are checks on a President’s power of executive order.  The first, most obvious is that Congress can overrule via their own legislation.  Secondly, Congress can de-fund the President’s ability to enforce executive action.

But you are correct that executive orders can be abused, just like any other power given to government.

Eric

To clarify, I believe the ability to create an Executive Order is well within the Presidents power. Expediency in some case are required. Emergency action should be something that a President can bring to the table. Again using the Sanders marijuana order as nothing more than an example. It is not an emergency, unless we're just talking medical legalization. I live in Oregon, marijuana is legal, the people voted and I don't see how an executive order would affect those States that have already legalized it. I absolutely see the need for Executive orders but in the case of emergencies only. If a sunset time limit was placed on them, inaction by the Legislature would nullify an Executive Order. If timely and pertinent the Legislature could then create something more solid than sort of a law.

I moved too slow to post first about executive orders pre-Nixon. Here's a wikipedia article where they tried to list them. (They weren't always called executive orders.)

This is my first time posting in the cider press, so I'll try to be careful here:
Executive orders make me nervous. Strictly speaking, I doubt their constitutionality, unless they are expressly granted by the constitution. (I haven't looked to find out.) Either way, they seem easy to abuse. Feels like taking the checks and balances that are meant to protect us from being ruled by the few, or by one, and building a bridge across them so one person can make laws unhindered. I'd like to see checks / balances just for executive orders, if we're going to have them. Maybe if they had to be approved, rejected or suspended pending approval immediately by the legislative and judicial branches the next time they're in session?

T,

Well, regarding the checks and balances, I agree for their need, but it is something that already exists.

A recent example (not perfect, but most of the principles still apply), President Obama negotiated with Iran, came to an agreement, but an agreement that was never going to be ratified by Congress (the President has the power to negotiate treaties, but the final authority is the Senate which needs a 2/3 approval for ratification).  There was absolutely no chance of the Senate approving the agreement Obama made with Iran, so it was not a treaty.  President Trump simply invalidated President Obama’s agreement which was the diplomatic version of an executive order.

Alternatively, Congress (actually the Senate in this case) could have struck down the deal had they collectively chosen to act, but they didn’t.

So there are checks and balances in place and they are sometimes used.  But any power has the potential to be abused no matter how many guards are put in place.

Eric

Now this might start a bucket of poop. Clinton's assault weapons ban and I'm not saying good or bad did have an end date. I'm ok with that, I think having that end date was an intelligent choice. I don't want this to turn into a gun debate just using the Order as an example.

Eric Hanson wrote:Alternatively, Congress (actually the Senate in this case) could have struck down the deal had they collectively chosen to act, but they didn’t.

So there are checks and balances in place and they are sometimes used.  But any power has the potential to be abused no matter how many guards are put in place.

Eric

True. But it's good to know that since EOs bypass some of the normal checks and balances, others are in place. I might've known, but as mentioned before, I haven't studied the matter to any great degree. In the classes I took, it was pretty much glossed over. I didn't even realize the potential for abuse until I was out of school.

T,

It is easy to overlook EO’s in history as they are basically short term, band aid, temporary solutions to problems.  Basically the intent is to give the President authority to act while Congress debates.

Eric

This lady doesn't gloss over anything. She goes directly to the original sources & doesn't ignore any huge white elephants that might be in the room. Nope. She goes straight for the jugular.

So my limited understanding is that once an executive order is signed it becomes law. Legislative action is limited to defunding the order not eliminate it if they do not like it.

Robert, everyone,

An executive order may be ended by any of the following:

1). A congressional “veto” w/ a 2/3 majority vote

2). Defunding by Congress

3). Overturned by court action (they are the 3rd co-equal branch of government)

4). Overturned by a following President


Eric

I know this is a bit off topic, but what do you think about the potential danger of repealing amendments as I illustrated above?

Eric

Frightening to think about the repeal of amendments. 2nd amendment is probably the most endangered one presently. Would that be a good idea, I think not. When you look at a populace that resists goverments it is usually a small percentage of the entire populace that resists.  I think the percentage of 2nd amendment supporters should that amendment be repealed will be a game changer politically.

Robert,

I would actually feel better if we passed an amendment stating that no freedom described (the actual term is retained but I can explain later) in the constitution or its amendments can be removed, revoked or repealed through future amendments.

The legal text & understanding of the Constitution is that the Constitution does not *grant* rights as it *retains* rights.  If the Constitution granted rights it could take them away whereas by retaining rights, the Constitution merely points out and defends rights you already have.

Eric

I could accept that as an amendment. I often get into discussions about rights not listed and rather than argue what I think are not rights and why, I would like the "retained rights" as listed protected. I guess my original query is in response to what I see as inaction in both houses requiring a sunset date would be an answer to my frustration.

Back to the original topic about executive orders, in short quick and dirty terms, an Executive Order (EO) is s sort of like an inverse law.  In this case it starts with the executive branch and can be overridden by Congress.

In theory, an EO has just as many checks and balances as a regular law.  There are concerns that a President, acting individually, can act very quickly while Congress can’t get a 2/3 agreement about Christmas or Mothers Day.

On the other hand, Congress, even with its partisan bickering, gets possessive and territorial about “laws” being passed without their input.  Generally Congress doesn’t get too worked up about emergency EOs, but on the other hand, Congress recently had a tizzy about executive overreach.

For about 7 of the 8 years of the Obama administration the President was pretty adamant about not being able to unilaterally do Congress’ job for them.  In his last year with basically nothing to lose he went EO crazy and actually caught a fair amount of flak from Congress, even from within his own party.

So, yes, an EO can be abused, but it does have checks and balances and I actually think that the system, while it has faults and is not perfect, actually works.

But feel free to disagree,

Eric

I think we both agree that there is a need for a President to have Executive Orders in his tool bag.
When becoming a lame duck it shouldn't be an excuse to over reach.
 The thoughtful debate of legislators in acquiring a 2/3rds vote for an EO repeal is prudent, though time consuming.
Using Sanders proposed executive order to legalize marijuana as an example of intelligent use of an EO just doesn't make sense to me. There is no emergency.
Oregon Legislators use an Emergency Clause to pass laws, in using that clause it prevents electors from avenues of protest that are afforded when laws are passed with normal procedures. There is no emergency, it is used as a roadblock to prevent action of the people.
The EO should be a scalpel not a sawzall. Requiring a sunset time would have no adverse effect on a true emergency order. Legislative action being required to extend the order if worthy or ignore review if it doesn't pass muster.

“A scalpel, not a sawzall”

Nice metaphor!  And I agree in both principle and execution.  

Nicely put!

Eric

I can't believe I'm following this thread...I dropped Political Science twice in college.  

Thank you all for having such a quiet and interesting discussion in plain language

Judith,

You are certainly welcome.  I have always had an interest in politics, but recently I have been put off by partisan behavior.  Washington even warned about this as he left office and I think the nation would be wise to heed his warning.  Lately when people ask me if I am a republican or democrat my response is that I am increasingly frustrated anti-partisan.

I like that you can appreciate the plain language part as well.  The Constitution was deliberately written in plain language so as to be comprehensible by everyone, not just those schooled in law.  

My last bit before I finish this so I don’t get overly verbose as I am prone, I like to think of partisan politics as being a reverse pendulum.  In a regular pendulum, take the pendulum to the extreme right (or left, doesn’t matter) and release, the pendulum will swing *almost* as far to the left, then right and so on until it rests at the center.

In partisan politics, nudge the pendulum just a little to the left (or right) and it swings further to the right, then further to the left and so on.  At this moment I believe the USA is at its 3rd worst period of partisanship in its history.  In my opinion, the second worst experience was just after Washington’s term (John Adams actually stated that if Jefferson were elected President, then rape would be taught and practiced in the nations schools—possibly the most hyperbolic statement in all of American politics!).  The most partisan time would of course be the years leading up to the Civil War.

Judith I hope that you can agree with me that politics should be able to be discussed without partisan hyperbole.

Really, thanks for the commentary,

Eric

It has been pleasant, Eric and I haven't really disagreed on anything. As far as comparing recent political discussions I have had face to face, very pleasant.