Executive order (United States)
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An executive order in the United States is a directive issued by the President, the head of the executive branch of the federal government. In other countries, similar edicts may be known as decrees, or orders-in-council.
U.S. Presidents have issued executive orders since 1789, usually to help direct the operation of executive officers. Some orders do have the force of law when made in pursuance of certain Acts of Congress, when those acts give the President discretionary powers.
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[edit] Basis in U.S. Constitution
U.S. Presidents have issued executive orders since 1789. Although there is no Constitutional provision or statute that explicitly permits executive orders, there is a vague grant of "executive power" given in Article II, Section 1 of the Constitution and the statement "take Care that the Laws be faithfully executed" in Article II, Section 3. Most executive orders are orders issued by the President to US executive officers to help direct their operation, the result of failing to comply being removal from office.
Other types of executive orders are:
- National Security Directives
- Homeland Security Presidential Directives (presidential decision directives)
[edit] History and use
Until the early 1900s, executive orders went mostly unannounced and undocumented, seen only by the agencies to which they were directed. However, the Department of State instituted a numbering scheme for executive orders in 1907, starting retroactively with an order issued on October 20, 1862, by President Abraham Lincoln. That order became necessary when Union forces captured New Orleans; Lincoln issued the order to establish military courts in Louisiana. Today, only National Security Directives are kept from the public.
Until the 1950s, there were no rules or guidelines outlining what the president could or could not do through an executive order. However, the Supreme Court ruled in Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952) that Executive Order 10340 from President Harry S. Truman placing all steel mills in the country under federal control was invalid because it attempted to make law, rather than clarify or act to further a law put forth by the Congress or the Constitution. Presidents since this decision have generally been careful to cite which specific laws they are acting under when issuing new executive orders.
Wars have been fought upon executive order, including the 1999 Kosovo War during Bill Clinton's second term in office. However, all such wars have had authorizing resolutions from Congress. The extent to which the president may exercise military power independently of Congress and the scope of the War Powers Resolution remain unresolved constitutional issues, although all Presidents since its passage have complied with the terms of the Resolution while maintaining that they are not constitutionally required to do so.
[edit] Criticisms
Critics[who?] have accused presidents of abusing executive orders, of using them to make laws without Congressional approval, and of moving existing laws away from their original mandates. Large policy changes with wide-ranging effects have been effected through executive order, including the integration of the armed forces under Harry Truman and the desegregation of public schools under Dwight D. Eisenhower.
One extreme example of an executive order is Executive Order 9066, where Franklin D. Roosevelt delegated military authority to remove all people (used to target specifically Japanese Americans and German Americans) in a military zone. The authority delegated to General John L. DeWitt subsequently paved the way for all Japanese-Americans on the West Coast to be sent to internment camps for the duration of World War II. Thousands of German Americans and Italian Americans were also sent to internment camps under executive order.[citation needed]
Executive Order 13233, which restricted public access to information was more recently criticised by the Society of American Archivists and other groups, stating that it "violates both the spirit and letter of existing US law on access to presidential papers as clearly laid down in 44 USC. 2201-2207," and adding that the order "potentially threatens to undermine one of the very foundations of our nation."
Critics fear that the president could make himself a de facto dictator by side-stepping the other branches of government and making autocratic laws. The Italian philosopher Giorgio Agamben in particular has criticized the generalization since World War I of the use of executive orders or decrees by all Western democracies, declaring that this tends toward the constitution of a "permanent state of exception." The presidents, however, cite executive order as often the only way to clarify laws passed through the Congress, laws which often require vague wording in order to please all political parties involved in their creation.
[edit] Legal conflicts
To date, U.S. courts have overturned only two executive orders: the aforementioned Truman order, and a 1996 order issued by President Clinton that attempted to prevent the US government from contracting with organizations that had strike-breakers on the payroll. [1] Congress may overturn an executive order by passing legislation in conflict with it or by refusing to approve funding to enforce it. In the former, the president retains the power to veto such a decision; however, the Congress may override a veto with a two-thirds majority to end an executive order. It has been argued that a Congressional override of an executive order is a nearly impossible event due to the super majority vote required and the fact that such a vote leaves individual lawmakers very vulnerable to political criticism. [2]
[edit] State governors' executive orders
Executive orders as issued by state governors are not laws but do have the same binding nature.
[edit] See also
[edit] Further reading
- Cooper, Phillip J., By Order of the President: The Use and Abuse of Executive Direct Action, Kansas State University, Kanniversity Press, 2002.
- Howell, William G., Power without Persuasion: The Politics of Direct Presidential Action, Princeton University Press, 2003.
- Mayer, Kenneth R., With the Stroke of a Pen: Executive Orders and Presidential Power, Princeton University Press, 2002.
- Warber, Adam L., Executive Orders and the Modern Presidency: Legislating from the Oval Office, Lynne Rienner Publishers, 2006.
[edit] Citations
- ^ Catherine Edwards, “Emergency Rule, Abuse of Power?”, Insight on the News, August 23, 1999, Pg. 18
- ^ Harold Hongju Koh, The National Security Constitution: Sharing Power after the Iran-Contra Affair, 1990, pg. 118-9
