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‘Stroke of the Pen – Law of the Land’ – Not Exactly…

January 13, 2013

The Washington Times reports that some are calling for Presidential ‘Executive Orders’ to be used to deal with the ‘gun control issue’ if Congress does not legislate as these advocates would like.  As one Clinton-era staffer said about executive orders – ‘Stroke of the pen, law of the land. Kinda cool.”  But…

The Constitution vests all legislative power in Congress, unless that power, unless that power, per the 9th Amendment, pertains to something not among the enumerate powers of the Federal Government, in which case the power to legislate upon it devolves upon the States or the People.  Not for nothing did early Americans fear executive power:  It had been used against them by King George III and his appointed colonial governors, who often ignored their legislatures, prorogued them out of existence and who governed, in the colonists’ opinion, as virtual despots.  (Even those colonists who remained loyal to the Crown of England – a.k.a. ‘Tories’ – had reason to complain of the abuse of their rights as Englishmen; they generally disagreed only upon the remedy for the problem.)  Thus, they separated the executive and legislative power, as well as reserving the power to tax and spend to the legislative branch of government at both the state and Federal levels.  They did this because experience, both their own, that of the ‘Mother Country’ and the history of other republics taught them that combining executive and legislative powers was to create de facto tyranny.

Presidents do, however, have executive order authority.  They are CEOs of the Executive Branch of the Federal Government.  Thus, any order they give, when operating within the scope of their authority, is a de facto executive order.  What is referred to here is policy-making power, which, again, Presidents have within the Executive Branch.  As the Executive Branch is an employer of millions of people, grantor of billions of dollars to millions of others and spender of trillions of dollars, orders that affect it in its’ entirety have very broad scope.  They are not, however, laws.  Indeed, executive orders used to be of a very mundane nature, indeed.  Even an activist President such as Theodore Roosevelt confined his executive orders to things such as veterans’ preference in Federal hiring, land management, planting trees on Federal property, promotions within the Civil Service and pay rates for members of the Armed Forces.

The use of executive orders to make public policy generally dates from the 1960s, when Lyndon Johnson used his power to prohibit Federal contractors from engaging in racial discrimination and to require that they use affirmative action to redress previous patterns of discriminatory activity.  Because of the size and scope of Federal activity, an executive order of this type has very broad reach across society as a whole.  It is not, however, a law of itself, and there are those (non-contractors of the Federal government) to whom it does not apply.

Thus, a desire to see policy enacted via executive order is not truly an end-run around Congress, due to the limited nature of the power to issue such an order.  It would be an extreme overreach for any President to assert that his executive orders had the force of law.  It is not outside the realm of possibility, however, as power, especially when un-checked or long-held, has a tendency to be abused, even if the best intentions are involved.  The point of contention here is not the rightness or wrongness of any action, but the issue of who(if anyone) may exercise the power in question.  This we have seen, for example,  a rash of post-9/11 ‘signing statements,’ where Presidents have signed laws but published their own interpretation of them when doing so.  This, too, is a separation of powers issue, as the interpretation of law is strictly a matter for the courts, and only the Courts may decide the Constitutionality of a law, or the interpretation thereof.


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