Nobles Law Firm

What’s all the hubbub about executive orders?

executive ordersThe more President Barack Obama talks about gun control, the more he talks about the potential use of executive orders.

Of course, there are some folks out there who are quick to accuse the president of invading the territory of Congress by singlehandedly passing laws. The fact of the matter is that executive orders have been with us for a long time and the use of them has been generally controversial.

The thing about executive orders is that the U.S. Constitution is more than a bit vague when it comes to defining what those actually are. Generally speaking, Art. I, §1, cl. 1 of the U.S. Constitution states that “the executive power shall be vested in a President of the United States of America.” Meanwhile, Art. II, §3, cl. 5 of the Constitution directs the president to “take care that the laws be faithfully executed.”

When presidents justify the use of executive powers, they are typically basing their authority on the aforementioned parts of the Constitution and claim that they have the authority to issue orders to help those in the Executive Branch do their jobs or to see that the day-to-day operations of federal government are carried out effectively.

See? Vague. Generally, an executive order must be rooted in the Constitution or spring from a power granted the president by Congress. Defining when a president is validly exercising his executive power and when he is invading Congress’ territory of making laws has been difficult and has resulted in a lot of litigation over the years.

Yes, the U.S. Supreme Court can determine whether a president goes too far with an executive order and has thrown some of the more aggressive ones out over the years. Congress can also step in and take action to nullify executive orders.

Regardless, every president in U.S. history has issued executive orders. Some of the better known ones over the years are as follows:

  • Abraham Lincoln issued the Emancipation Proclamation and abolished slavery in the Confederacy.
  • In 1957 Dwight D. Eisenhower placed the Arkansas National Guard under Federal control and sent in the U.S. Army to make sure that nine black children could attend Little Rock High School.
  • Lyndon B. Johnson prohibited federal employers from discriminating on the basis of race, color, religion, sex or national origin.
  • In 1948, Harry S. Truman ended segregation in the military.
  • A good portion of Franklin D. Roosevelt’s “New Deal” initiative to improve the economy was enacted through executive orders. Interestingly, Roosevelt also caused those of Japanese descent living in the United States to be tossed into internment camps during World War II.

Those are just a few of the executive orders that have been issued through the years. The vague Constitutional basis of them combined with the knack of president’s to try to issue them when they can’t get Congress to do what they want pretty well guarantees we’ll be arguing over executive orders for years to come.

This column — part of the Practical Lawyer series — was authored by Ethan C. Nobles and originally appeared in the Jan. 11, 2016, edition of the Daily Record in Little Rock.

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