Executive Orders v. Executive Actions

Susan Sullivan Lagon | February 27, 2015

Article II of the Constitution begins, “The executive Power shall be vested in a President of the United States of America.”  The extent of that “executive power” has been debated since the beginning of the republic—indeed, even earlier.  The Founders were familiar with John Locke’s concept of “executive prerogative” (that certain circumstances call for the Chief Executive to act swiftly, subject to the eventual approval of the legislature) but the term is conspicuously absent from the Constitution.

With few exceptions, all U.S. presidents have exercised some form of prerogative.  President Obama’s recent Deferred Action on Childhood Arrivals (suspending deportations of undocumented minors) is but one example.  Presidential directives can take several forms but they are not interchangeable.  The Executive Order is a familiar tool presidents use to act in the absence of legislation. It can’t replace or contravene statutes enacted by Congress, it can only “fill in the gaps.”  In 1942, FDR issued an infamous one that allowed the internment of American citizens of certain nationalities in camps during WWII; Eisenhower famously used one to desegregate public schools in 1957; JFK used one to create the Peace Corps in 1961; and Obama just used one to set up a task force on policing in the 21st century.

Unlike law, however, Executive Orders can be overturned by subsequent presidents.  When there’s a change in party control at the White House, it’s become de rigeur for the incoming president to dispense with a few Executive Orders issued by his predecessor at the first possible opportunity.  For example, Bush lifted Clinton-imposed restrictions on road-building on public lands, and Obama lifted the Bush-imposed ban on new embryonic stem cell research.  Courts have recognized Executive Orders as having the force of law until superseded by legislation or unless they are clearly in conflict with existing law.  For example, Truman’s attempt to nationalize steel mills threatening to strike during the Korean War was one of the rare instances in which the Supreme Court struck down an Executive Order as directly conflicting with procedures outlined  in the Taft- Hartley Act. (See YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952).

Executive actions take a variety of forms and it is impossible to see how the president could fulfill his constitutional obligation to “take care that the laws are faithfully executed” without them. The current controversy over Obama’s action on immigration following Congress’s inability to pass a bill involves one specific type of action known as “prosecutorial discretion.”  All agencies with enforcement power must set priorities because there simply aren’t enough hours, dollars, or personnel to enforce everything.  This is a reality that all executives face, and allocating resources is by definition a judgment call.

In this case, the exercise of prosecutorial discretion involves the President directing the Department of Homeland Security (DHS) to defer deportations of approximately 5 million unauthorized immigrants, a scale that dwarfs other presidents’ executive actions in the immigration area.  Twenty-six states (24 of which have Republican governors) sued the administration over this action, and a District Court judge in Texas issued a temporary injunction  against DHS carrying out the program until the lawsuit could be decided.  The judge said that there was no statutory basis for the administration “to give 4.3 million removable aliens what the Department of Homeland Security itself labels as ‘legal presence.’  In fact, the law mandates that these illegally-present individuals be removed.”  The administration sought an emergency stay of the injunction and the judge gave the states until March 2.  The case could go to the U.S. Court of Appeals for the 5th Circuit and even to the Supreme Court for resolution.

Legal scholars, Members of Congress, and talk show guests can debate whether the President’s action is constitutional, a question the courts will ultimately decide.  What’s potentially more interesting is the precedent this executive action may set.  Is it a good idea to vest so much discretion in a President without Congress’s tacit or explicit approval?   In other words, it may be legal, but is it wise?  Despite their support for the President’s intentions, many Democrats are saying “be careful what you wish for.”  There are institutional powers at stake that could have a profound effect on the separation of powers among the branches.

Ruth Marcus had a thought-provoking column in the Washington Post in which she speculated about Democrats’ reactions to future Republican presidents’ use of prosecutorial discretion.  Suppose a president opposed the Affordable Care Act and told the IRS to go after tax cheats instead of those who didn’t comply with Obamacare.  Or what about a president who told the EPA to shift its attention to something other than emissions from coal-fired power plants?  It may be the judicial branch and not the executive or legislative branch that will have the final word on a whole host of controversial policy issues.

Susan Sullivan Lagon is a Nonresident Senior Fellow at the Government Affairs Institute

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