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Going Alone — Obama and the Limits of Government by Executive Order

By David Schultz

What can presidents really do if Congress does not cooperate?  In many cases, they can make law through the use of executive orders. We were reminded of this during President Barack Obama’s State of the Union Speech when he told Congress that if they were not to cooperate, “I’ll act on my own.” But how legitimate and viable is government by executive order as a tool of governance?

We have plenty of legally binding directives that were not passed that way but still have the force of law. These include court orders, administrative rules and executive orders. All have the force of law. Nowhere in the Constitution does one find any language describing or mentioning executive orders, but they have been a common place throughout American history.  The first may have been the 1793 “Neutrality Proclamation” where George Washington announced the United States to be neutral in the conflict between Great Britain and France.  President Lincoln’s 1963 Emancipation Proclamation is perhaps the most famous. Franklin Roosevelt’s 1942 executive order providing for the internment of 120,000 Japanese-American was the most regretful. But between and after them, all presidents have used executive orders on topics ranging from procurement and discrimination to the environment and foreign affairs.

Obama is no different in what he has already done and what he will probably do with executive orders. He already has ordered the minimum wage to be increased for federal contractors and created a new retirement account for workers. Expect more on immigration, criminal justice and the environment in the months to come. In his closing month of office, look to see how many orders he issues–again no different from recent presidents.

The constitutional foundation for executive orders resides in Article II, Section I of the Constitution that vests the executive power in the president. Presidents have inherent authority to act and enforce the law, giving them significant leeway to act. The Supreme Court first recognized this authority in Wolsey v Chapman, 101 U.S. 755 (1879). Since the New Deal and the passage of the Administrative Procedures Act, where Congress has delegated significant power to the president, the executive branch has tremendous power to enact rules that carry the force of law. In general, president’s can use executive orders across a range of issues so long as they can show it solely affects the executive branch, that Congress has delegated authority to them or that the order does not explicitly conflict with an existing law.

Executive orders generally are more potent tools of foreign than domestic policy. Until the twentieth century an executive agreement was held not to be a part of “the supreme law of the land,” as indicated in Article VI of the Constitution. The executive agreement has always been recognized as a valid international arrangement, but it was not regarded as enforceable in domestic courts. It was not until United States v. Belmont, 301 U.S. 324 (1937), that the Court distinctly placed executive agreements on the same legal level with treaties. This decision was followed five years later by a corollary case, United States v. Pink (315 U.S. 203, 1942).

Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1952) also known as the “Steel Seizure” case, may be one of the most influential cases on foreign policy in the Court’s history—at least it has become so. While the Court struck down President Truman’s effort to nationalize the steel industry in order to avert a strike and the interruption of steel production during the Korean War, the case is not read as detrimental to presidential power and authority. Instead it is important to read the opinion as providing an outline for what types of foreign policy authority the president does have. Most importantly, Justice Jackson’s opinion is often the most cited part of the Youngstown decision. It describes a tripartite division of presidential power in foreign affairs depending on whether the chief executive is acting alone or with or against congressional approval. Presidents from Lyndon Johnson to George Bush cite it to support their military adventures, especially when they can point to congressional statements such as the Gulf of Tonkin Resolution or the Authorization to Use Military Force endorsing their actions.

Finally, the scope of presidential power and the use of executive orders is not simply the product of congressional delegation and inherent Article II power.  Over time, rightly or wrongly, Congress has ceded power to the president because of inaction or simply because it is easier for the latter to act. Thus, as historians such as Arthur Schlesinger, Jr. used to describe it, we have created an imperial presidency by both acts of omission and commission.

So how does all of this relate back to Obama? First, executive orders are law, but whether going around Congress to enact a law is a different question. He would not be the first president to act because Congress could or would not. Dysfunctional Congresses are the occasion for presidents to act and to demonstrate the powers of an imperial presidency. Political disagreement and bad leadership in the House should create a power vacuum for the president to fill. Yet government by executive order has its limits. Obama wants to effect big changes domestically in issues addressing race, immigration and economic inequality. Executive orders are better foreign policy tools and better mechanisms for achieving results that do not require congressional appropriations or changes in tax, education, employment, criminal justice or civil rights law.   There are a lot of laws already here, giving the president too little wiggle room to change policy in any meaningful long term way.

Obama may be able to make small changes that are mostly symbolic, but legislating by executive orders is not going to do much to help him secure his agenda unless he becomes more bold and creative in how to deploy his presidential powers. So far his presidency has rarely displayed boldness and there is little indication that will change in the final three years of his administration. If anything, as Obama becomes a lame duck and his political influence wanes, he will have even fewer chances to display boldness. Governing by executive order may not be the best way to get anything done in Washington, but Obama may not have any other option.


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