logo

A Brief History of the Executive Order

image
Created: 10 February, 2014
Updated: 14 October, 2022
3 min read

With any administration, we tend to hear from time-to-time the mention of executive orders being issued by the president. Even in his last State of the Union speech, President Obama stated that he would use executive orders to move things forward where he could when Congress could not or would not act. But, what are executive orders and what can a president do with them?

 

 

No where in the U.S. Constitution does it mention executive orders. The most basic definition is that they are orders to help officers and agencies of the Executive Branch enforce the laws that are passed by Congress.

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Article I, Section 1, U.S. Constitution

The president cannot use executive orders to legislate though the administration is allowed under Article II, Section 3, Clause 2 to make suggestions to the Congress on legislation. Under Clause 5 of the same article and section, the president must "take care that the laws be faithfully executed."

All presidents dating back to George Washington have issued orders that can be counted as executive orders even though they didn't officially have the name. Washington's first one stated that the U.S. was was going to remain neutral in the war between France and Great Britain. The numbering system we use today when referring to a specific order was not done until later, though they have been retroactively back-numbered to an order issued by President Abraham Lincoln in 1862.

Since a Supreme Court decision in 1952, presidents have also made sure to cite which specific laws they are acting under when they are issuing the executive order.

Though the president cannot use executive orders to make laws, the orders can still have a very wide-ranging effect.

President Harry Truman issued an executive order to integrate the armed forces, and President Dwight Eisenhower issued one to integrate public schools. Executive Order #9066 was issued by President Franklin Roosevelt to declare certain areas as military zones, but was soon used for the relocation of Japanese-Americans to internment camps during World War II. He claimed it was within his power under his military authority.

Lately, there has been criticism from Republicans as President Obama has signed several executive orders to delay certain parts of the Affordable Care Act (ACA), even though the law makes no specific mention of the president having this authority. Their claim is that the president is "cherry-picking" which parts of the law to obey and which not to. Executive orders cannot violate the laws passed by Congress or the responsibilities delegated to the Executive Branch.

IVP Existence Banner

The Supreme Court ruled in 

Humphrey's Executor v. United States that the president must obey the law. He or she has no authority under the constitution to suspend the enforcement of the law. By this definition, the president's actions described above in regard to the ACA are not valid without congressional approval.

So when any president states that he or she is going to issue an executive order to do something, one must not blink. We must make sure that it falls within the responsibility of the president in executing laws passed by Congress.

Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. - Justice Robert H. Jackson

Latest articles

votes
Wyoming Purges Nearly 30% of Its Voters from Registration Rolls
It is not uncommon for a state to clean out its voter rolls every couple of years -- especially to r...
27 March, 2024
-
1 min read
ballot box
The Next Big Win in Better Election Reform Could Come Where Voters Least Expect
Idaho isn't a state that gets much attention when people talk about politics in the US. However, this could change in 2024 if Idahoans for Open Primaries and their allies are successful with their proposed initiative....
21 March, 2024
-
3 min read
Courts
Why Do We Accept Partisanship in Judicial Elections?
The AP headline reads, "Ohio primary: Open seat on state supreme court could flip partisan control." This immediately should raise a red flag for voters, and not because of who may benefit but over a question too often ignored....
19 March, 2024
-
9 min read
Nick Troiano
Virtual Discussion: The Primary Solution with Unite America's Nick Troiano
In the latest virtual discussion from Open Primaries, the group's president, John Opdycke, sat down ...
19 March, 2024
-
1 min read
Sinema
Sinema's Exit Could Be Bad News for Democrats -- Here's Why
To many, the 2024 presidential primary has been like the movie Titanic - overly long and ending in a disaster we all saw coming from the start. After months of campaigning and five televised primary debates, Americans are now faced with a rematch between two candidates polling shows a majority of them didn’t want....
19 March, 2024
-
7 min read