Quite a few people are throwing around the idea of impeaching Obama for unconstitutional executive orders. Let's hope it happens if he steps out of the bounds of his power. Today, Obama is rolling out 19 executive orders on gun control. Since they will likely legislate, they will be unconstitutional.
Executive orders are supposed to deal with the Executive Branch of government. I was looking through my Constitutional Law book written by Michael Farriss, ESQ and found some information on executive orders and a few SCOTUS rulings on them.
In talking about two modern [abuses] of
presidential power- war powers and executive orders "the other area of
power asserted by the modern presidency is power to make law through
executive orders and regulations. Executive
orders are issued by the president with the claim that they have the
force and effect of law. Regulations are issued by cabinet departments
which are answerable to the president. For example, the EPA has issued
volumes of regulations that private property owners must obey. When
executive orders or regulations are issued without any authorization
from Congress, they are on shaky constitutional ground. But Congress
could not pass a law that simply says,"The president may issue whatever
executive orders he wishes on any subject
' the constitution requires that ALL legislative authority be vested in
Congress. The president or his cabinet cannot make laws even WITH the
consent of Congress - according to clear language of the Constitution.
The modern claim is that administrative regulations and orders are not
"laws" within the meaning of the constitution, although they are binding
rules that must be obeyed by private parties"
the executive branch (President) makes a law via executive order that
people must obey, even if they call it a " rule", then it/ he is
legislating in violation of Article 1 section 1 of the Constitution. The President doesn't have the power to amend laws via executive order, either.
Executive orders cannot be unconstitutional - just as any treaties or
laws Congress passes cannot be unconstitutional.
situation gets a bit sticky- according to the Constitutional Law book I have. If congress
passes a law giving the executive branch the power to make rules, then
the administrative agencies, as part of the executive branch, can issue
rules which make no policy decisions-
such as designing forms, specifying filing deadlines, etc. but when the
administrative agency makes a rule enacting a new policy, that is quite
different. Such regulations are in reality a new law. All laws are
supposed to be enacted by Congress.
Two SCOTUS cases dealing with Executive Orders:
Youngstown Sheet &Tube v Sawyer (1952) -President Truman issued an
executive order seizing the steel mills after the steel industry union
gave notice of a nationwide strike. Without an statutory power granted
by Congress, the only reason presented was the avoidance of national
catastrophe and imperiling of the national defense. It was ruled that President Truman did not have the power to issue that executive order.
US v Curtiss-Wright Export Corp (1936) FDR both banned the sale of
weapons to Bolivia and Paraguay and lifted the ban on the basis of power granted to
him by Congress. This authority was challenged as an unconstitutionally
granted legislative power. The
defendant, Curtiss wright, a weapons manufacturer was convicted of
selling arms to warring nations in violation of an executive order that
was made pursuant to a joint resolution of Congress. The non- delegation
doctrine does not bar congress from delegating
great authority and discretion to POTUS in the conduct of foreign
affairs. ( note Congress was involved and FDR did not go around Congress
to subvert the Constitution as Obama will today with his 19 executive orders on gun control)