The Executive Order, A Dangerous Tool

As I have mentioned before our governmental system can be a bit confusing. In my last article I wrote that the President can’t make laws by himself. This is true, to a point; however there is an exception to this statement. I also pointed out the President has authority of the Executive Order otherwise known as an EO. An EO carries the same legal weight as a law passed by Congress, therefore it can be considered just as binding as if Congress had made it law. In this article we will explore what an EO is, it’s intent and how it compares to a law passed by Congress.

An Executive Order is a legally binding order given by the President, acting as head of the Executive Branch, to federal administrative agencies. The President’s source of authority to issue Executive Orders can be found in the Article II, Section 1 of the Constitution which grants to the President the “Executive Power.” An EO differs from a law in the sense that laws are placed on the books and directly affect the citizenry. An EO is directed at a federal agency which is bound by law to enforce the EO. This is one example of how sometimes our system gets confusing. The intent of the EO was to allow the President to direct federal agencies and officials in their execution of congressionally established laws or policies.

Here is an oversimplified example of how and EO should to work. A company board of directors establishes a policy within the company that everyone is to wear a hat to work on Fridays. This would compare to Congress passing a law. The board passes the policy to the CEO of the company who then issues instructions to department heads about the directive and how it is to be enforced. This would be the same as an Executive Order issued by the President. This example is also why the EO is dangerous. In the example the board of directors only said all employees had to wear hats to work on Friday, although they could have been more specific and in detail. They didn’t specify what kind of hats was acceptable or what the penalty for not wearing a hat would be. This leaves a broad interpretation of the policy up to the CEO in his instructions to the department heads.

Just as in our example above if Congress is not detailed in the verbiage of the laws it passes it leaves broad gaps for the President to interpret the law and direct enforcement and execution of the law via Executive Order to the federal agencies responsible for the law. Here is another example; Congress passes a law that all non hunting rifles are illegal. If they do not clarify any further then there are many aspects of the law left open for the President to interpret. With this vague law in hand the President could issue an EO to the Bureau of Alcohol Tobacco and Firearms that nearly any rifle is not suitable for hunting. He could also direct them to confiscate all such rifles from gun stores and even individuals and prevent further manufacturer or importation of such. This example is extreme and God forbid should Congress pass any law as vague as this example but you should get the idea of how powerful and EO can be, especially if it is orchestrated with Congress to circumvent the debate and review process. This could be a real danger with this President and Congress we have now. In recent years the EO has been used to circumvent the process and put laws into place that a sitting President did not want to deal with Congress on. President Bill Clinton issued over 300 EO’s many to bypass a Republican majority congress. The liberal runaway use of EO’s goes against the grain of the Constitution and the checks and balances it provides.

The EO is a dangerous tool in the hands of a President that is willing to use it to implement what is known as “stroke of the pen” law. The EO is controversial because it allows important decisions and even laws to be made without the consent of Congress. This goes against the general logic of the Constitution which intends that no one should have power to act unilaterally. Another danger is if an EO is deemed to create policy or law regarding National Security most times it will not be made public. In essence we may have laws that we don’t even know about. Another danger of the EO is it can be implemented without review or public knowledge until after it is signed by the President. Unlike a bill that is made public as soon as it is introduced on the floor of Congress, the EO can be written and signed before ever being seen by the public. The ultimate criticism of Executive Orders is that the runaway use of could result in a President becoming a virtual dictator, capable of making major policy decisions without any congressional or judicial input.

There are 3 types of EO’s. Proclamations are generally ceremonial in nature such as “National Stand on Your Head Day”. Another subset of Executive Orders is those concerned with national security or defense issues. These have generally been known as National Security Directives. Under the Clinton Administration, they have been termed “Presidential Decision Directives.” And the last is the EO that directs federal agencies in implementing and executing laws made my Congress. If Congress does not like what the executive branch is doing, it has two main options. First, it may rewrite or amend a previous law, or spell it out in greater detail how the Executive Branch must act. Of course, the President has the right to veto the bill if he disagrees with it, so, in practice, a 2/3 majority if often required to override an Executive Order. In addition to congressional recourse, Executive Orders can be challenged in court, usually on the grounds that the Order deviates from “congressional intent” or exceeds the President’s constitutional powers.

Just as with Congress, it is up to us to make ourselves knowledgeable of Executive Orders are being issued. Unlike being able to protest a bill before it becomes law, with the EO we will have to recourse it after the fact. This will make it much harder to reverse since we will have a Democrat controlled Congress. What we have to watch for is a pattern. If the sitting President starts using EO’s excessively we must call for Congress to check his actions and make this activity known to the public. We can’t depend on the media to do this; they have shown their true colors in this last election. It is up to us as citizen patriots to keep check on what the President and Congress is up to on a regular basis.