Are Presidential “Executive Orders” UnConstitutional?

A number of presidents dating back over my lifetime if not before have issued so-called “Executive Orders” (EOs). Until relatively recently, they were limited to directions to Executive Branch appointees on how to implement some particular measure passed by Congress or in some cases, interpreted by the Supreme Court. Recently, however, presidents from both parties have been issuing EOs that actually seek to implement policy.

Since they are also sworn to “defend the Constitution”, are these EOs consistent with what the Constitution permits them to do under its separation of powers and enumerated duties and powers?

First, realize that the Founders intentionally laid out the Constitution’s only enumerated powers in the first three Articles. The first Article was the most important and covered the Legislature’s powers. Their enumerated powers.

It has been noted that the branches of government (Legislative, Executive, and Judicial) maintain “checks and balances” on each other, but that they are not co-equal branches.

The Legislature in Article I is the most important as it is the closest to the people, with the lower chamber being up for re-election every two years, and a third of the upper chamber being so. Being closer to the people — the true owners of the power — the legislature is delegated more enumerated powers than the other two.

Laws are not passed by the President or the Court but are reserved exclusively to the Legislative branch.

Article II deals with the Executive branch, headed by the President. As the Executive is more removed from the people — only elected every four years and not accessible on a day-to-day basis for most voters, it has less power than the Legislative branch. The President is certainly powerful, but some of that modern day power is what has been usurped from the Legislative branch.

Article II is broken into four sections.[i] The first deals with how the president is elected. The second deals with what he is in charge of such as the military and negotiating foreign treaties. The third requires reporting to Congress (making him explicitly subservient to that branch), and the fourth briefly provides for impeachment (details of the trial are under Article I section 3, which deals with the Senate responsibilities.)

Sometimes engineers note that the absence of data IS data. The absence of light is darkness. The absence of heat energy is cold. The absence of the expected amount of cash in a bank vault is evidence of a theft. Absence of randomness is evidence of design.

In a famous Sherlock Holmes passage in “The Mystery of Silver Blaze” by Arthur Conan Doyle, the crime was solved by what the dog didn’t see — referring to a dog not barking during the commission of a crime.[ii]

Article II Section 3 is particularly relevant, perhaps more for what it doesn’t say than what it does. It deals with reporting to Congress each year.

In its entirety, it reads:

“He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”

Just what “Measures” (including laws and other policies) can he personally implement? None! The second clause of the first sentence specifically says he can “recommend to their [Congress’] Consideration”. That’s it. Recommend.

No policy change or law change “Measures” may be done by simple “executive orders” (or any other means by the executive branch) — regardless of what side of the political aisle the president — or you — are on!

Footnotes:

[i] Article II of the US Constitution is as follows:

Section. 1.

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: — “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Section. 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The 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.

Section. 3.

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section. 4.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

[ii] Project Gutenberg’s The Memoirs of Sherlock Holmes, by Arthur Conan Doyle, Title: The Memoirs of Sherlock Holmes, Author: Arthur Conan Doyle, Release Date: March, 1997 [EBook #834], Last Updated: July 6, 2019, https://www.gutenberg.org/files/834/834-h/834-h.htm accessed 1–21–21.