Executive Orders

In the aftermath of the Sandy Hook Elementary School shooting in Newtown, Connecticut, there has been an outcry from many segments of society for stricter gun laws that proponents believe could prevent similar tragic events in the future.  President Obama, sympathetic to the call, has proposed twenty-three executive orders that would tighten gun regulations.  The National Rifle Association and many supporters of liberal second amendment rights argue that such unilateral action is unconstitutional because it is Congress' duty to make laws, not the President's.

These events have prompted me to write on the use of executive orders and the President's executive power generally.  It would probably be more interesting to write on the constitutionality of President Obama's proposed executive orders, but I do not have time for an in depth analysis of twenty-three proposed orders, and I think a brief explanation of Presidential power would be helpful to others in beginning their own analysis of President Obama's proposals.

Despite common perception, the Constitution is not the sole source of the President's power.  In United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), Justice Sutherland explained that there are two types of federal power: first, powers in respect of foreign or external affairs; second, powers in respect of domestic or internal affairs.[1]  He stated:

"The two classes of powers are different, both in respect of their origin and their nature.  The broad statement that the Federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.  In that field, the primary purpose of the Constitution was to carve from the general mass of legislative powers then possessed by the states such portions as it was thought desirable to vest in the Federal government, leaving those not included in the enumeration still in the states.  That this doctrine applies only to powers which the states had, is self-evident. And since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the United States from some other source."[2]

Ultimately, Justice Sutherland declared:

"the President alone has the power to speak or listen as a representative of the nation . . . [and is] . . . the sole organ of the Federal government in the field of international relations-- a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution."[3]

Accordingly, the President's domestic power must derive its source from the specifically enumerated powers in the Constitution and those powers which are necessary and proper to carry out those powers, but the President's power in dealing with foreign affairs is much broader.  This blog post will focus only on the President's domestic powers, which is limited by the Constitution.

The United States Constitution states:

"All legislative Powers herein granted shall be vested in a Congress of the United States."[4]

"The executive Power shall be vested in a President of the United States of America."[5]

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."[6]

These three provisions establish what is commonly referred to as the separation of powers, one of the major features of our country's governmental structure.  Typically, this separation is viewed as a strict division of responsibility; Congress makes the laws, the President executes the laws, and the Courts interpret and adjudicate the laws.

James Madison argued that "the separate and distinct exercise of the different powers of government . . . [is] essential to the preservation of liberty."[7]  Yet, even Madison admitted that "[w]ere this principle rigorously adhered to . . . [s]ome difficulties . . . and some additional expense would attend the execution of it.  Some deviations, therefore, from the principle must be admitted."[8] 

Article II of the Constitution may generally be viewed as a pronouncement of executive powers.  It also, however, provides insight into the crossing of executive and legislative functions.  Article II gives the President the following powers: (1) power to be "Commander in Chief of the Army and Navy . . . ."; (2) power to "grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment"; (3) power to "make Treaties" "by and with the Advice and Consent of the Senate . . . .";  (4) power to "appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States . . . ."; (5) power to "fill up all Vacancies that may happen during the Recess of the Senate . . . ."; and (6) power to "take Care that the Laws be faithfully executed."

A brief examination of the powers listed in Article II reveals that some of the listed powers are more legislative in nature than executive; specifically, the power to fill vacancies in the Senate, and the power to make treaties.  Interestingly, the power to make treaties intersects with the President's more broad international powers.  Further Article I, Section 7, gives the President the ultimate legislative power; the power to veto any bill passed by Congress.  Accordingly, the Constitution clearly gives the President powers that are legislative in nature.

The question is: when the President issues an executive order, is he exercising a legislative power or an executive power?  And, if he is exercising legislative power, is it an unconstitutional encroachment on Congress' legislative authority or a permissive deviation from the separation of powers? 

In 1952, during the Korean War, the United States Supreme Court discussed the President's power to issue executive orders in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).  President Truman, in response to an imminent strike by the United Steel Workers Union, issued Executive Order 10340.  The order directed the Secretary of Commerce, Charles Sawyer, to seize the steel mills and operate them, with true ownership remaining with the mills' owners.  Part of the President's order was also a directive to reopen negotiations with the Union.  The steel companies sued, arguing that they would suffer irreparable harm from the compelled negotiations.  The Court held that the President's order violated the Constitution.

Justice Black explained:

"[t]he President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. . . .  In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.  The Constitution limits his functions in the law-making process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.  And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute."[9]

Importantly, the Supreme Court did not hold that the President could never issue executive orders.  Rather, the Court held that this particular order violated the Constitution because the President had usurped Congress' legislative function.  Justice Black stated:

"The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress--it directs that a presidential policy be executed in a manner prescribed by the President."[10]

Accordingly, if an executive order is utilized to execute a law passed by Congress "in a manner prescribed by Congress," it is a permissive use of the President's executive power.  If, however, the President utilizes an executive order to set and execute his own policies, it invades Congress' legislative authority and is unconstitutional.

While this concept is simple to articulate, it can be very difficult to determine when a President's order regarding the manner to execute a law prescribed by Congress crosses the line and becomes an unconstitutional exercise of legislative power.  That question must be analyzed on a case by case basis.  This determination is especially difficult when Congress passes laws establishing agencies, run by the President, with little to no guidance on how to achieve the legislative objective.  The President and his administration are left to decide how to execute this broad law.

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[1] United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315 (1936).

[2] Id.

[3] Id. at 319.                                

[4] United States Constitution, Article 1, Section 1.

[5] Id. at Article 2, Section 1.

[6] Id. at Article 3, Section 1.

[7] Federalist No. 51. 

[8] Id.

[9] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952). 

[10] Id. at 588.