Hearing of the
Subcommittee on Legislative and Budget Process
The Impact of Executive Orders on the Legislative Process: Executive Lawmaking?
The underlying authority for issuance of specific executive orders is derived from the Constitution or from statute. As explained in Congressional Quarterly's "Guide to the Presidency" (1989) the power of the President goes beyond those authorities actually enumerated in the Constitution.
"‘Express' powers – those specifically named in the Constitution – like the veto give presidents a limited set of tools for shaping legislation. But powers implied in the Constitution, and given substance by years of continuous reinterpretation, are the source of the president's ability to act alone, often without specific congressional statute. . . An offspring of the implied powers doctrine is the executive order. This critical instrument of active presidential power is nowhere defined in the Constitution but generally is construed as a presidential directive that becomes law without prior congressional approval. It is based either on existing statutes or on the president's other constitutional responsibilities. Executive orders usually pertain specifically to government agencies and officials, but their effects often reach to the average citizen."
In his book, Constitutional Conflicts Between Congress and the President (Fourth Edition, Revised, University Press of Kansas, 1997), Louis Fisher outlines the tensions that exist between the legislative and executive branches when it comes to the practical application of the legislative power:
"The ambiguity of ‘enumerated' and ‘separated' powers is nowhere more evident than in the assignment of the legislative power. Much of the original legislative power vested in Congress is now exercised, as a practical matter, by executive agencies, independent commissions, and the courts. The President's legislative power, invoked on rare occasions in the early decades, is now discharged on a regular basis throughout the year in the form of executive orders, proclamations, and other instruments of executive lawmaking. In self-defense, Congress has developed a complex system that depends on procedural guidelines for agency action, judicial review, committee and subcommittee oversight, and a constantly evolving structure of informal, nonstatutory controls." (Page 118)
Remedy also exists in the judicial branch, in instances where the legitimacy of an executive order is challenged. There have been, however, only two occasions – once in 1952 and once in 1996 – when executive orders were struck down by the courts.
In a seminal case on this issue, the Supreme Court in Youngstown Sheet & Tube Co. v Sawyer (1952) found that President Truman had, in seizing most of the nation's steel mills in an effort to end a labor dispute stalemate, exceeded his authority under the Constitution or statute. The Court found that an executive order must be based either on an act of Congress or directly on the Constitution itself. In an important concurring opinion, Justice Jackson established a framework for assessment of executive orders, which includes three "tests" to determine the legitimacy of such an order. That opinion reads, in part:
- "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. . .
- "When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. . .
- "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the entire matter. . ."
Executive Orders and the Law
Originally, executive orders based their legitimacy on Article II, Section 3 of the U.S. Constitution, which contains the phrase “he [the President of the United States] shall take Care that the Laws be faithfully executed.” This phrase was interpreted as a management tool, a way for the president to enforce Congress’s wishes. Almost immediately, presidents tried to widen the scope of the short phrase. For instance, George Washington proclaimed a “neutrality order” that declared that Americans must not be involved in disputes between foreign countries; this was not the execution of a law but the creation of a law.
Should an Executive Order meet with enough resistance either from the public or from Congress, it is possible to reverse it. In effect, Congress “may rewrite or amend a previous law, or spell it out in greater detail how the Executive Branch must act” or a lawsuit may be brought challenging the Executive Order. In the latter case, FDR’s Japanese internment camp Executive Order was challenged, twice, but was upheld both times by the U.S. Supreme Court while President Harry Truman’s Executive Order to seize control of steel mills to settle a labor dispute was overturned.