What Is an Executive Order?

On Thursday, February 18, 2010, President Obama signed an executive order to create a bipartisan debt commission to address ways to reduce the federal budget deficit. President Obama signed this order after a proposal to create such a commission failed in Congress. Executive orders allow the President to circumvent Congress to implement various policies. In fact, Dan Pfeiffer, White House Communications director, recently said, [t}he challenges we had to address in 2009 ensured that the center of action would be in Congress. In 2010, executive actions will also play a key role in advancing the agenda” (emphasis mine). President Obama has used executive orders 43 times in his presidency thus far to order action ranging from closing the Guantanamo Bay prison to establishing a Council of Governors (NOTE: links are PDFs and may take more time to load). In recent administrations, President George W. Bush issued 248 executive orders, and President Bill Clinton issued 364 executive orders.

What is the precedence for a President using executive order? The Constitution does not specifically extend such power to the President. Article II, Section 1, Clause 1 states, “[t]he Executive Power shall be vested in a President of the United States of America”. While executive orders have been used since 1789, the basis for such usage is thought to have originated from the Mississippi v. Johnson Supreme Court decision. This decision suggested that the President performs two general types of tasks: ministerial and discretionary. Executive orders are a means of a President executing his or her ministerial duties. The guidelines for executive orders were clarified by the Youngstown Steel Sheet Tube Co. v. Sawyer Supreme Court decision. This court decision stated that executive orders must not be used to create law, but only to act upon a law or the Constitution.

Executive orders have been used extensively by both Republican and Democratic administrations. They have been used for controversial and noble reasons alike. President Franklin Roosevelt’s Executive Order 9066 was used to promote the internment of Japanese Americans during World War II. One executive order under President Eisenhower led to the desegregation of public schools. Executive orders have also been issued by consecutive administrations to nullify the executive order of the previous administration. Though not by executive order, President Clinton rescinded what is widely known as the Mexico City Policy, a policy instituted by President Reagan that prevented any federal funding from going to foreign countries for abortion services. When President Bush took office, he issued an executive order that re-instituted the Mexico City policy. Last year, when President Obama took office, he issued an executive order rescinding President Bush’s executive order which once again allowed taxpayer money to fund foreign abortions (NOTE: links are PDFs and may take more time to load).

While individuals of all political stripes can recognize the subjective good and bad that has resulted from executive orders, we as Americans should be vigilant and attentive to what executive orders are stating. We must view their words and subsequent effects as Constitutional or non-Constitutional rather than Right or Left.

Crossposted here.