by Dave Kluge

In the past couple of hundred years, the power exercised by the President has been in the news and has been controversial.

For example in March of 2010, President Obama signed a presidential executive order a few hours before the health care bill was voted on in the House of Representatives and passed. Rep. Bart Stupak announced that he and other anti-abortion rights Democrats had agreed to vote for the President’s bill as the President had pledged to issue this executive order so that taxpayer dollars would not fund abortions. http://blogs.abcnews.com/thenote/2010/04/abortion-foe-bart-stupak-to-retire-from-congress.html

Republicans then claimed this was a Presidential ploy to get the health care bill passed; and that the President’s executive order really had no real enforcement power.

http://www.usatoday.com/news/washington/2010-07-15-abortion15_ST_N.htm

Earlier in February 2010, the NY Times reported the President Obama’s team was preparing for a number of actions to exercise Obama’s executive power to advance his legislative agenda despite that agenda being stalled in Congress. The NY Times reported “Any president has vast authority to influence policy even without legislation, through executive orders, agency rule-making and administrative fiat.” [An administrative fiat is an authoritative decree, sanction or order issued from an office with executive or managerial authority, without necessarily having the force of law or its equivalent.] http://www.nytimes.com/2010/02/13/us/politics/13obama.html

So, what are presidential executive orders and what do they mean? They are simply written orders by the President. They are described and listed all the way back to President Herbert Hoover at this National Archives site: http://www.archives.gov/federal-register/executive-orders/disposition.html

Presidential executive orders have the force of law if the President has authority to issue them, they do not conflict with constitutional or statutory provisions, and they are put into force in a proper manner. Presidential executive orders have been challenged in court or through congressional action. http://www.nytimes.com/interactive/2015/01/20/us/politics/presidental-executive-action.html?_r=0

Presidential executive orders have been issued by Presidents starting with President Washington, although there is no specific mention of them in the Constitution.

Article I of the Constitution states that “All legislative powers herein granted shall be vested in a Congress of the United States“.

Article II states that “the executive power shall be vested in a President of the United States,” and includes the President as “Commander in Chief of the Army and Navy of the United States” and has the power to “take care that the laws be faithfully executed.”

In 1999, the U.S. Congress looked into the “express powers” of the President, which are powers specifically named in the Constitution such as the power to veto legislation versus “implied powers,” which are only implied in the Constitution, such as presidential executive orders which can become law without prior congressional approval. In that year both Congressmen Daryl Metcalfe and Ron Paul separately introduced bills to clarify and limit the power of presidential Executive Orders, which bills did not get very far.

In Constitutional expert Louis Fisher’s 1997 book, Constitutional Conflicts Between Congress and the President, he describes the conflicts between the legislative and executive branches of our government over 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, non-statutory controls.” http://archives.democrats.rules.house.gov/archives/rules_hear08.htm

Ten years later, in Fisher’s 2007 article titled “Invoking Inherent Powers: A Primer,” he describes this continuing conflict with examples such as:

President Lincoln suspended the writ of habeas corpus, withdrew funds from the Treasury, called for the state militia and placed a blockade on rebellious states without Congressional approval.

President Harry Truman sent U.S. troops to South Korea without Congressional for authority, thus violating the Constitution, the Legislative history of the UN Charter, and the UN Participation Act of 1945, all of which required Truman to obtain approval from Congress before entering a foreign war.

President Bush used his “inherent” presidential powers to create military commissions, designate U.S. citizens as “enemy combatants,” condone torture in interrogations and conduct eavesdropping without warrants. http://www.loc.gov/law/help/usconlaw/pdf/Inherent-March07.pdf

So, this conflict has been going on a long time! There is still more to cover:

In August 2009, the NY Times reported President Obama issuing “signing statements” when he approved bills passed by Congress. In these statements Obama claimed the authority to bypass dozens of provisions of bills enacted into law. Earlier in Obama’s campaign for President, he criticized President Bush for issuing signing statements, such as those that Bush issued that instructed officials how to interpret new laws.

In that article the New York Times also reported that “And last month several leading Democrats — including Representatives Barney Frank of Massachusetts and David R. Obey of Wisconsin — sent a letter to Mr. Obama complaining about one of his signing statements. ‘During the previous administration, all of us were critical of the president’s assertion that he could pick and choose which aspects of Congressional statutes he was required to enforce’ they wrote. ‘We were therefore chagrined to see you appear to express a similar attitude.’”

Presidents have signed bills they thought were unconstitutional since the 19th century, but Presidents Reagan, George H. W. Bush, and Bill Clinton issued signing statements challenging provisions of bills passed by Congress much more frequently. Then President George W. Bush challenged nearly 1,200 provisions of bills, which was nearly twice the number of all previous presidents combined. http://www.nytimes.com/2009/08/09/us/politics/09signing.html?_r=1&hpw

Yet, there is more:

“Recess appointments” have been in the news where Obama has threatened and made appointments while Congress was on a short recess.http://www.nytimes.com/2010/03/28/us/politics/28recess.html and http://thecaucus.blogs.nytimes.com/2010/07/06/obama-bypassing-congress-on-medicare-job/

Article 2, Section 2, Clause 3 of the Constitution states “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

During the 18th and 19th centuries, both houses of the U.S. Congress had relatively short sessions and long recesses—transportation to and from the U.S. Senate and House of Representatives was a major issue prior to our modern transportation system. Prior to the 20th century, Congress was usually in session less than half a year.

President Clinton made 139 recess appointments, 95 to full-time positions.

President George W. Bush made 171 recess appointments, of which 99 were to full-time positions.

As of February 1, 2015, President Obama made 32 recess appointments, all to full-time positions. http://www.senate.gov/CRSReports/crs-publish.cfm?pid=’0DP%2BP%5CW%3B%20P%20%20%0A

Does it make sense for Congress to allow a President to make an appointment over a short Spring or July recess when Congress was unable to make the requested appointments during its actual session?

What do you think of how Presidents have been exercising their powers and how Congresses have gone along with what a President wants to do?