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Executive Orders - F.A.Q.

 

      
What 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.

How 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 orders issued.

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 become law?

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.

Why repeal the War Powers Resolution of 1973?

The War Powers Resolution: Time to Say Goodbye
Louis Fisher
David Gray Adler
Political Science Quarterly
Volume 113
Number 1  1998

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 law.”1

Implementation 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, 1989), 434-35.

Please note that an amendment to repeal the War Powers Resolution of 1973 lost by only six votes in the U.S. House in 1995 (201-207).

Does the law require all executive orders to be published?

The Federal Register Act requires that executive orders and proclamation be published in the Federal Register. 44 U.S.C. Sec. 1505. They can be found on the internet at the National Archives web site.


 

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