Executive Orders: The Constitution Doesn’t Authorize Legislation by Executive

When the most current occupant of the White House was thwarted by Congress (as well as preempted by many states, aka Nullified before the fact) in his attempt to further remove the natural right of bearing arms, he decided he would write Executive Orders.

So what are Executive Orders?  The Constitution does not clearly give the President an authority called “Executive Orders”.  However, in Article II, Section 1 and in Section 3 we do see phrases such as “[the President] take care that the laws be faithfully executed”.   The purpose is generally thought to mean these orders would be the means by which the President would direct the heads of departments in carrying out the laws or regulations enacted by Congress.

President Washington, issued 8 of what are now called executive orders; President Lincoln issued 48; President T Roosevelt; issued 1,081;  Franklin Roosevelt produced 3,522 and Mr. Clinton created 364.

Have some Presidents used the “Executive Orders” to end run around Congressional checks and make law by fiat?  We all know of the infamous Order number 9066 wherein Franklin Roosevelt delegated military authority to “remove any or all people (used to target specifically Japanese Americans and German Americans) in a military zone”. The authority delegated to General John DeWitt paved the way for all Japanese-Americans on the West Coast to be sent to internment camps for the duration of World War II.

President Truman tried to seize all steel mills in the US under executive order 10340 in 1952.  That went to the Supreme Court and was found to be invalid because it attempted to make law, rather than clarify (or act to further) a law put forth by the Congress or the Constitution. (See Youngstown Sheet & Tube Co v. Sawyer).

President Clinton tried to use executive orders 1995 to stop the federal government from signing contracts with strike-breaking organizations.  Congress was able to overturn that order.

In 1983 the Supreme Court ruling in Immigration and Naturalization Service v. Chadha caused a great weakening of the Congressional veto.  Congress can and does exercise its control of funding to stop executive orders that appear to be attempts at creating laws without Congressional approval.  Although a super majority of Congress can nullify any executive orders written, super majorities of Congress, like politicians who respect the Constitution, are hard to come by these days.