Wednesday, January 16, 2013

Constitutionality of Executive Orders

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"

 If 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. 

The 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:

 In 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.

 In 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)

1 comment:

Front Porch Grace said...

I seriously wonder if Obama ever reads the Constitution. I think he just has a team that tries to find loopholes and when one is not there, he is sickly arrogant enough to just do it anyway.

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