is a presidential executive order?
Since there is no provision in the
U.S. Constitution or any federal statute which defines a
presidential executive order, it is difficult to answer this
question briefly. A presidential executive order should be a
directive which is issued by a president to exercise a power
which he has been given by the U.S. Constitution or by a
federal statute. For example, a president can use an
executive order to direct those in the executive branch of
government, because they work for him. However, executive
orders frequently have been issued improperly to exercise
powers which only the Congress has, and, in this way,
legislate by decree. Further, some presidents have used
executive orders to exercise powers which the entire federal
government was never intended to have.
many executive orders have been issued?
Executive orders have been issued since President
Washington. There are estimated to be tens of thousands
which have been issued - many which have been lost over the
years. The government assigns numbers to executive orders,
but only beginning with those issued by President Lincoln.
Since the Civil War, there have been over 13,100 executive
Does the U.S.
Constitution permit presidential executive orders?
The U.S. Constitution does not make any reference to
executive orders. Clearly, certain powers are delegated by
the U.S Constitution to the president to exercise, such as
the pardon power or commanding the armed forces, and these
orders certainly could be labeled executive orders. But
presidents have been creative in reading the Constitution to
grant them broad authority - such as the provision "he
shall take Care that the Laws be faithfully executed."
To what extent can the
president enact legislation by executive order?
A president cannot legislate by himself, but President
Clinton acts as though he has a different view. Article I of
the Constitution provides, "All legislative powers
herein granted shall be vested in a Congress of the United
States." The Supreme Court has stated that, even if
presidents have, without congressional authority, taken
actions only the Congress may take, "Congress has not
thereby lost its exclusive constitutional authority to make
laws necessary and proper to carry out the powers vested by
the Constitution in the Government of the Untied States, or
any Department or Officer thereof." Youngstown Sheet
& Tube Co. v. Sawyer, 343 U.S. 579 (1952) Unfortunately,
the Congress has delegated rule making authority and
emergency powers to the President and cabinet heads and
agency heads, and although executive branch actions taken
pursuant to these delegations of power have been viewed as
constitutional by the U.S. Supreme Court, this lax attitude
wrongly allows presidents to, in effect, legislate.
How long does
Congress have to disapprove executive orders before they
There is no time period for congressional approval or
disapproval of executive orders, and the Congress almost
never takes any action regarding them. When executive orders
are based on the authority of the president derived from the
U.S. Constitution or a federal statute, they can have the
force and effect of law. However, executive orders should
generally govern actions only by executive branch officials
and agencies. Although they would normally be obeyed by
those who worked for the president, they normally should not
be viewed as having the force of law.
repeal the War Powers Resolution of 1973?
The War Powers
Resolution (WPR) of 1973 is generally considered the
high-water mark of congressional reassertion in national
security affairs. In fact, it was ill conceived and badly
compromised from the start, replete with tortured ambiguity
and self-contradiction. The net result was to legalize a
scope for independent presidential power that would have
astonished the Framers, who vested the power to initiate
hostilities exclusively in Congress. The resolution,
however, grants to the president unbridled discretion to go
to war as he deems necessary against anyone, anytime,
anywhere, for at least ninety days. As Arthur Schlesinger
Jr. has observed, before “the passage of the resolution,
unilateral presidential war was a matter of usurpation. Now,
at least for the first ninety days, it was a matter of
the War Powers Resolution has revealed further deficiencies.
After occupying Haiti, the Clinton administration actually
cited the resolution favorably as another weapon to add to
its ever-expanding arsenal of claims for presidential
warmaking power. After nearly twenty-five years of
experience, it would be better for both branches - and for
constitutional government - to repeal the War Powers
Resolution and rely on traditional political pressures and
the regular system of check and balances, including
impeachment. There is some risk that repeal might indirectly
signal a reduced role for Congress, but that role has
reached a minimal level anyway in part because of the War
Powers Resolution. Over the long term, outright repeal would
be less risky than continuing along the present path.
NOTE: Louis Fisher
is senior specialist in separation of powers at the
Congressional Research Service of the Library of Congress.
David Gray Adler is professor of political science at Idaho
State University. To obtain the complete 21-page article,
please order from the Political Science Quarterly at www.psqonline.org
1 Arthur M. Schlesinger,
Jr., The Imperial Presidency (Boston: Houghton Mifflin,