Executive Orders

In recent years, there has been a resurgence of interest in how executive orders have been used and whether there has been a violation of presidential executive orders. An executive order is a guideline from the president with the same authority as federal legislation. The president's executive orders are often addressed specifically to government departments and officials. Over the years, presidents have used executive orders to express different government internal affairs, as well as to deal with crises, determine when and how specific laws can be enacted, and develop measures to suit their agendas. However, there have been reported cases of abuse of the executive orders by the presidents, and some are accused of taking advantage of this power to force some policies that do not sufficiently interest the public. But are the executive orders constitutional? And do they create an unequal separation of power?

Any executive order has the full force of law if only it’s based on the authority consequent of the constitution or from the statute. In the constitution of the United States, no provision openly permits the practice of executive orders. Where the executive order is mentioned in the constitution, there is no clear explanation of what it should pertain. For any acting president, the executive order they develop must go in line with the constitution fails to which the president can face removal from office (Rudalevige, 158). The question of whether or to what extent should the executive orders be used to become unconstitutional always narrows to one’s opinion. Many feel that the executive orders that are currently being made by the sitting presidents are interfering with the freedoms and rights of the citizens.

Many argue that there should be a big difference between giving an executive order that is a directive and making a law. The president has no authority to make legislation all in the name of an executive order. In their defense, the presidents say that some directives they make are because the Congress is too slow to work. For example, the gun ban that was to be implemented some years back was an act against the constitution because such an issue should not be made and concluded by the executive only. On the other hand, however, an executive order that entirely follows the dictate of the constitution is completely constitutional. When the president gives out the executive order that many congress members don't agree with, they can, in turn, make another law that they feel can counter the executive order (Mason, Alpheus, & Grier, 302). Also, the judicial procedures are well put in place to challenge an executive order that is not in line with the constitution.

Executive orders are constitutional presidential decrees that derive their legal authority from Section 1 of Article II of the United States Constitution. According to this act, the president executive power while Section 3 of Article II gives a direction to the president that he/she should make sure that Laws are executed faithfully (Mayer, 88). Since the founding of the United States, presidents have used and developed various executive of presidential directives according to the powers granted by the Supreme Authority (US Constitution) of the land. The earliest commonly known presidential directives are proclamations and executive orders, but various other documents possess similar roles and effects. Presidential directives are written in nature rather than using oral decrees. That is why most executive orders are directives that the president appends his signature instead of limiting a directive to an oral declaration. As such, American presidents have used written orders to run the Executive (Mayer).

The US Constitution documents the legitimate uses of presidential directives that the President may issue in the practice of the statutorily and constitutional delegated powers. The US President is the Commander in Chief, but his role is limited by the Congress as the constitution stipulates that the President has no power to declare war or make rules. However, the power of the President as a military commander is very broad, and as such, the president may issue executive orders in line with the administration and ones not defined under the Congress (Warber, 56-57). For instance, the President can issue an executive order to close certain US military bases abroad in line with the administration’s agenda of reduced military expenditure per say.

As the Head of State, the Constitution gives the president sole responsibility for implementing foreign policy. The US President has the authority of negotiating treaties, foreign governments, and receiving foreign ambassadors among other roles. The Congress may come up with legislations that influence foreign policy by using a two-thirds accepted Senate majority to ratify any bill before it becomes law. However, it is the sole responsibility of the Executive arm of government to execute foreign policies and other diplomatic relations. All these constitutionally approved statutes give the President authority to issue executive orders necessary for the operation of the US government. With this note, executive orders affect all the bodies of the executive branch of government including federal agencies that are under the direct authority of the president. However, the president cannot issue directives that affect other constitutionally recognized bodies such as the Judiciary as part of the separation of power principle.

The American Presidents use executive orders as a clarification, enforcement, and prioritization of the existing laws. With the signing of an executive order, the presidency gives a directive to the agencies and branches of the executive with regards to implementing or enforcing laws and policies. Furthermore, the president can use executive orders to make new regulations in the areas that the branches of the executive have jurisdiction. Therefore, executive orders are important tools for running the executive branch of the US government (Rudalevige).

The three branches of government are structured to have equal powers though it's tough to distribute power among them equally. Each branch is supposed to check if the other branch is abusing power in any way to ensure that there is credibility in what is done by that branch. The executive orders have been accused of creating an unequal separation of powers because the executive powers seem to be additional power given to the executive making it more powerful than others (Fine, Jeffrey & Adam, 260). Furthermore, even with the stipulated guidelines on how to revoke executive orders, it's usually not as easy as it may sound and the majority of the directives typically pass. However, executive orders do not exactly create an unequal separation of power because the directives made by the president are not exactly laws since Congress is the branch that can make laws.

The founders of America gave the country one gift, the separation of power as enshrined in the US Constitution. The American generations continue to enjoy this gift two centuries down the line. The Federalist Papers explained the concept of separation of power during the ratification of the United States Constitution. At the end of debates over the separation of power principle, the founders of the nation agreed that the president should insert proper authority. The president has the obligation or right to issue an order, proclamation or a decree to undertake a particular power that is according to his discretion but one that affirms to the Constitution or by legislation passed by Congress. However, the separation of power as enshrined in the Constitution cuts the president’s ability to issue a decree that is highly committed to another arm of government as the presidential action may be rendered void. For instance, the president cannot make legislation, but the Executive is tasked with the duty of implementing statutes passed by Congress (Mason).

The separation of power principle is important because it preserves civil liberty by preventing tyranny. According to Publius, tyranny is dangerous since the desires and passions of men are not perfectly harmonious. Man’s reason may be distorted or influenced by desire. He further stated that man has the right to pursue happiness, liberty and right to life, but he cannot secure these rights without engaging other men and creating a civil society (Bardes et al., 66). However, as much the legal unity of people exists, a civilized society is entitled to varied opinions where the majority and minority divided by interests. As such, there should be precautions against injustice, and that is why the powers of the government are divided to avoid a particular individual or group from possessing the powers at once.

Executive orders do not create an unequal separation of power. With this note, the Constitution has not granted congressional approval of executive orders. Also, the Congress does not have the power to overturn an executive order. The Executive is obligated to make orders that are in line with the president’s agenda. Therefore, if the Congress feels that it does not like a President’s decree or order, the Constitution permits it to make laws that limit certain actions of the executive order. For instance, the Congress can end or limit the funds available for the implementation of the order. However, any law that is intended to undermine or limit an executive order must gain a two-third majority support in Senate as a precaution against the president’s veto power in influencing legislations (Bardes et al., 87).

Consequently, if the Congress is unsuccessful in limiting the performance of executive orders, it has the option of challenging the legality of the presidential decree in judiciary via courts. If the courts of law determine that the executive order is unconstitutional or illegal, the president has the duty to issue an appeal to the highest court of the land. In America, the appeal can only be hard and determined by the Supreme Court (Bailey et al., 154). In one way or the other, the Supreme Court rules that a presidential order exceeds the constitutional powers of the Executive or if it does not align with the intent of Congress, the order must cease. For instance, when President Trump took office, he issued an executive order suspending visas from certain Muslim-Majority nations such as Yemen. The order was subjected to legal battles until the Supreme Court intervened, blocked the order but later allowed for a partial implementation of the visas suspension order. Similarly, if the order is upheld by the Congress, the executive remains until when Congress implements new statutes ((Bailey et al., 155). Based on the above arguments, executive orders do not create an unequal separation of powers because the Legislature and the Judiciary can intervene to determine the legality of an executive order.

Conclusion

Executive orders have been used by American Presidents since the ratification of the US Constitution. They have been used since Washington’s presidency to the current Trump administration. The presidential use of directives and orders grants its authority for the Constitution of the United States that is considered the epitome of Supreme Authority. As such, executive orders are very constitutional because the constitution gives the president executive powers necessary for running the executive branch of government. The president uses executive orders according to party affiliation agenda or according to legal advisory granted to the president. As such, executive orders are legal means of influencing policies that would otherwise take long for the Congress to debate and approve. With this note, executive orders do not need approval from Congress, but there are legitimate ways that the Congress can use its constitutional mandate to overrule presidential directives. On the other hand, executive orders do not create an unequal separation of powers. The United States is a country built on the principles of separation of power to avoid certain groups or individuals from possessing all the power. The principle is used to maintain checks and balances in a civilized society like the United States. Most importantly, the separation of power enforces civil liberty and democracy. Some critics argue that executive orders give certain powers to the presidency that lead to unequal separation of power. However, the Legislature and Judiciary are there to make and implement laws as well as monitor the executive. It is also important to note that not all executive orders are controversial, but controversy arises when interests vary between the administration and the Congress. Nevertheless, the bottom line is that executive orders are constitutional and a strong case study for the separation of powers in action.

















Works cited

Bailey, Jeremy D., et al. Executive authority: is it checked balanced and separate? Virginia Law Foundation, 2016.

Bardes, Barbara A., et al. American government and politics today: the essentials. Wadsworth/Cengage Learning, 2014.

Fine, Jeffrey A., and Adam L. Warber. "Circumventing adversity: Executive orders and divided government." Presidential Studies Quarterly 42.2 (2012): 256-274.

Mason, Alpheus Thomas, and Grier Stephenson. American constitutional law: introductory essays and selected cases. Routledge, 2015.

Mayer, Kenneth R. With The Stroke Of A Pen. Princeton, N.J.: Princeton University Press, 2002. Print.

Rudalevige, Andrew. "The contemporary presidency: Executive orders and presidential unilateralism." Presidential Studies Quarterly 42.1 (2012): 138-160.

Warber, Adam L. Executive Orders And The Modern Presidency. Boulder, Colo.: Lynne Rienner Publishers, 2006. Print.