Legal Briefings: Growth of the executive order, unchecked

OPINION – Executive orders have existed in one form or another since our nation’s founding, and many citizens anticipate or even fear executive orders involving gun control. For over a century, executive orders were far less common than they are today, and, with some exceptions, were generally used with an appropriate measure of restraint.

However, when the federal government began to rapidly expand in the early twentieth century, there was a corresponding increase in the use of executive orders by presidents from both political parties. To illustrate this significant increase, The American Presidency Project reports that, from presidents George Washington to William McKinley (comprising the years 1789 through 1901), a total of 1,262 executive orders were issued by the first 25 presidents.

But beginning when Theodore Roosevelt took office after President McKinley’s assassination in September 1901, and ending with Barack Obama’s recent first term in office, the number of executive orders that have been issued by the remaining 19 presidents has skyrocketed to a whopping 13,934.

The words from a president who issued 3,522 executive orders on his own, Franklin Roosevelt, in his 1933 inaugural address, demonstrate an alarming attitude:

It is to be hoped that the normal balance of the executive and legislative authority may be wholly adequate to meet the unprecedented task before us. But it may be that an unprecedented demand and need for undelayed action may call for temporary departure from that normal balance of public procedure. . . . I shall not evade the clear course of duty that will then confront me. I shall ask the Congress for the one remaining instrument to meet the crisis — broad executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.

This broad executive power, including the use of executive orders has not since been relinquished. The Constitution does not speak of executive orders. Unlike Articles I and III where the legislative and judicial powers are explained very precisely, Article II is less precise and has been interpreted much more loosely. Thus, the Executive Vesting Clause of Article II, Section 1, has essentially been accepted as a source of presidential powers that are not enumerated in the Constitution. This has resulted in both the growth of the executive branch generally, and the increased use of executive orders specifically.

Some executive orders deal with war, international affairs, or directives to administrative agencies. But there have been times in our nation’s past when executive orders have been abusive and implemented to satisfy political agendas while circumventing Congress. The executive branch exploits the legislative branch’s sluggishness or inaction and aggrandizes power to itself. This is a dangerous encroachment on liberty because executive orders enjoy the full force of federal law. Of course, Congress can nullify or terminate an executive order by passing a statute, but historically it has rarely done so.

Indeed, how would Congress be able to nullify an objectionable executive order that circumvents Congress when it was issued because Congress could not agree on a particular policy or piece of legislation in the first place? This would require a congressional majority to agree that although it has not reached a consensus on a given policy or statute, it disagrees with the president’s efforts to avoid the decision-making process altogether. In an era of harsh rhetoric and bitter partisanship, such a development seems unlikely.

The Supreme Court is also empowered to overturn an executive order when presented with an actual controversy, but historically, the court is much more inclined to defer to the so-called expertise and wisdom of the executive branch instead of declaring its conduct as unconstitutional. For an example of such deference, when President Franklin D. Roosevelt famously issued Executive Order 9066 on February 19, 1942, and paved the way for thousands of individuals of Japanese ancestry to be locked in camps during World War II, the Supreme Court upheld this activity as constitutional because of the wartime urgency to take proper security measures against espionage.

But a 1952 plurality decision, Youngstown Sheet & Tuber v. Sawyer, represents the rare occurrence when the Supreme Court brought executive abuse of executive orders to a halt after President Truman used such an order to seize the nation’s steel mills during a labor strike because of the need to manufacture weaponry during the Korean War.

Justice Black wrote that in order for President Truman’s executive order to be valid, there must have been an express grant of authority from Congress or an implied power contained in the Constitution, of which President Truman had neither. Justice Douglas observed that if the court “sanctioned the … exercise of power by (Harry Truman), (it) would be expanding Article II of the Constitution and rewriting it to suit the political conveniences of the present emergency.” Justice Frankfurter warned that the “accretion of dangerous power does not come in a day.  It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.”

And finally, in perhaps the decision’s most famous concurring opinion, Justice Jackson outlined three fluctuating circumstances when a president could assert authority in descending degrees:  (1) when acting with an express or implied grant of authority; (2) when acting in absence of a congressional grant or denial of authority; and (3) when acting incompatibly with the express or implied will of Congress.

Since Congress is usually locked in a partisan stalemate and neither grants nor denies such authority to the executive, combined with the unprecedented increase of executive orders since the early 1900s, the unfortunate result is the increasing misuse of executive orders to accomplish “political conveniences.” It is likely and disheartening that gun control is one of those politically convenient issues to abuse.

Author:  Trevor C. Sanders, Esq.

Trevor C. Sanders is an attorney at Aaron J. Prisbrey, P.C. and a resident of Hurricane. He can be contacted with questions, comments, or concerns at:

Email: [email protected]

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Copyright St. George News, LLC, 2013, all rights reserved.

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