The presidents power to issue executive orders comes from Congress and the U.S. Constitution. Executive orders differ from presidential proclamations, which are used largely for ceremonial and honorary purposes, such as declaring National Newspaper Carrier Appreciation Day. Executive orders do not require congressional approval. Thus, the president can use them to set policy while avoiding public debate and opposition. Presidents have used executive orders to direct a range of activities, including establishing migratory bird refuges; putting Japanese-Americans in internment camps during World War II; discharging civilian government employees who had been disloyal, following World War II; enlarging national forests; prohibiting racial discrimination in housing; pardoning Vietnam War draft evaders; giving federal workers the right to bargain collectively; keeping the federal workplace drug free; and sending U.S. troops to Bosnia. Historically, executive orders related to routine administrative matters and to the internal operations of federal agencies, such as amending Civil Service Rules and overseeing the administration of public lands. More recently, presidents have used executive orders to carry out legislative policies and programs. As a result, the executive order has become a critical tool in presidential policy making. For example, President john f. kennedy used an executive order to eliminate racial discrimination in federally funded housing (Exec. Order No. 11,063, 3 C.F.R. 652 [1959–1963], reprinted in 42 U.S.C.A. § 1982 app. at 6-8 [1982]); President lyndon b. johnson acted through an executive order to prohibit discrimination in government contractors hiring practices (Exec. Order No. 11,246, 3C.F.R. 339 [1964–1965], reprinted in 42 U.S.C.A. § 2000e app. at 28-31 [1982], amended by Exec. Order No. 11,375, 3 C.F.R. 684 [1966–1970], superseded by Exec. Order No. 11,478, 3 C.F.R. 803 [1966–1970], reprinted in 42 U.S.C.A. § 2000e app. at 31-33 [1982]); and President richard m. nixon used an executive order to set a ninety-day freeze on all prices, rents, wages, and salaries in reaction to rising inflation and unemployment (Exec. Order No. 11,615, 3C.F.R. 602 [1971–1975], amended by Exec. Order No. 11,617, 3 C.F.R. 609 [1971–1975], superseded by Exec. Order No. 11,627, 3 C.F.R. 621 [1971–1975]). Such executive orders usually impose sanctions, determine legal rights, limit agency discretion, and require immediate compliance. Federal courts consider such orders to be the equivalent of federal statutes. In addition, regulations that are enacted to carry out these executive orders have the status of law as long as they reasonably relate to the statutory authority. An administrative action that is carried out under a valid executive order is similar to an agency action that is carried out under a federal statute. In each case, the agencys authority to enact rules and to issue orders comes from Congress. Absent specific statutory authority, an executive order may have the force and effect of law if Congress has acquiesced in a long-standing executive practice that is well-known to it. For example, in Dames v. Regan, 453 U.S. 654, 101 S. Ct. 2972, 69 L. Ed. 2d 918 (1981), the U.S. Supreme Court upheld various executive orders that suspended claims of U.S. nationals arising out of the Iranian hostage crisis, citing Congresss Acquiescence in a 180-year-old practice of settling U.S. citizens claims against foreign governments by executive agreement. In describing the situation before it, the Court stated, We freely confess that we are obviously deciding only one more episode in the never-ending tension between the President exercising the executive authority in a world that presents each day some new challenge with which he must deal and the Constitution under which we all live and which no one disputes embodies some sort of system of checks and balances. Executive orders also may be authorized by the presidents independent constitutional authority (Cunningham v. Neagle, 135 U.S. 1, 10S. Ct. 658, 34 L. Ed. 55 [1890]). Various clauses of the U.S. Constitution have been cited to support the issuance of executive orders. Among them are the Vestiture Clause, which states, The executive Power shall be vested in a President of the United States of America (art. II, § 1, cl. 1); the Take Care Clause, which states that the president shall take Care that the Laws be faithfully executed (art. II, § 3); and the Commander in Chief Clause, which states that the president shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States (art. II, § 2, cl. 1). Executive orders often omit citing a specific constitutional provision as authority. For example, Executive Order No. 11,246 (3 C.F.R. 339 [1964–1965 Comp.]), which prohibits discrimination in federal employment, simply states, Under and by virtue of the authority vested in me as President of the United States by the Constitution and statutes of the United States, it is ordered as follows … Some executive orders issued pursuant to the presidents independent constitutional authority have been criticized as implementing what has been called essentially executive managerial policy. Although this type of order is directed toward public officials, it also may affect private interests, through the actions of such officials. For example, Executive Order No. 11,246, which prohibits discrimination in federal procurement and employment, affects the interests of federal contractors and their employees; Executive Order No. 10,988 (3 C.F.R. 521 [1959–1963 Comp.]), which extends Collective Bargaining to the federal workforce, affects federal workers; and Executive Order No. 12,291 (3 C.F.R. 127 [1982]), which imposes controls on administrative rule making, affects individuals who are subject to administrative regulations. Quite simply, republicans in Congress are upset or pissed because Obama is able to move the country forward without them, the second is theyre trying to create a distraction while they take a five-week recess and continue to be the do-nothing Congress they have proven time and time again. I thought fiscal conservatives were against frivolous lawsuits paid for by the American taxpayers, then again like everything else with most congressmen, its do as I say not as I do.
Posted on: Thu, 31 Jul 2014 17:29:16 +0000
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