Apparently President Obama has become convinced that he can make magic with that pen he keeps talking about, the one he plans to use for signing executive orders to revive his beleaguered presidency. Executive orders are irresistible, because a president doesn’t have to propose anything, debate the issues, endure hearings or solicit votes. An executive order can be issued in a few minutes — behind closed doors and away from bright lights.
Paul Begala, who was an advisor to President Bill Clinton, reportedly remarked, “Stroke of the pen, law of the land, kinda cool.”
What about the Constitution? It describes presidential power broadly. There isn’t anything in the Constitution that authorizes an executive order or limits what a president can do with it.
Executive orders arise from “implied constitutional and statutory authority,” the Congressional Research Service reported. “If issued under a valid claim of authority and published in the Federal Register, executive orders may have the force and effect of law.”
Many executive orders are in a twilight zone of dubious constitutional legitimacy if not open defiance of the Constitution, especially when they amount to lawmaking without congressional approval.
Presidents have made extravagant claims with their executive orders, as Harry Truman did when he issued executive order 10340 that directed the Secretary of Commerce to stop a steelworkers strike by seizing privately-owned steel mills. Truman insisted that a prolonged strike would impair the government’s ability to fight his undeclared “police action” in Korea. Truman’s Solicitor General Philip B. Perlman declared that Article II, Section 2 of the Constitution “constitutes a grant of all the executive powers of which the Government is capable.”
The case came before the Supreme Court as Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Justice Robert Jackson — like Truman, a Democrat — was incredulous at the administration’s position. He said, “The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by King George III. The description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. Continental European examples were no more appealing. And, if we seek instruction from our own times, we can match it only from the executive powers in those governments we disparagingly describe as totalitarian. I cannot accept the view that the clause is a grant in bulk of all conceivable executive power.”
Justice Hugo Black, another Democrat, wrote the majority opinion invalidating the seizures. Black explained that an executive order (1) “must stem either from an act of Congress or from the Constitution itself” and (2) an executive order is on dubious ground if it’s “incompatible with the express or implied will of Congress.”
There have been thousands of executive orders, so it’s hard for government to keep track of them all, and it’s even harder for ordinary citizens. In 1974, the Senate Committee on National Emergencies and Delegated Emergency Powers was surprised to discover that “Since March 9, 1933, the United States has been in a state of declared national emergency. There are now in effect four presidentially-proclaimed states of national emergency. In addition to the national emergency declared by President Roosevelt [during the Great Depression], there are also the national emergency proclaimed by President Truman on December 16, 1950, during the Korean conflict, and the states of national emergency declared by President Nixon on March 23, 1970 and August 15, 1971.”
The committee report continued, “These proclamations give force to 470 provisions of Federal law, delegating to the President extraordinary powers, ordinarily exercised by the Congress, which affect the lives of American citizens in a host of all-encompassing manners…The President may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and in a plethora of particular ways, control the lives of all Americans.”
President Obama’s admirers like to talk about the wonderful things can be done with executive orders, but the historical record has been mixed. Some have been fine, while many have backfired badly.
Executive orders go back to the beginning of our country, although they weren’t called that. Usually they were referred to as proclamations.
President George Washington’s first proclamation was on October 3, 1789. He said, “Both Houses of Congress have by their joint Committee requested me to recommend to the People of the United States a day of public thanksgiving.” This was authorized by Congress.
Washington’s Neutrality Proclamation wasn’t authorized by Congress. Issued on April 22, 1793, it declared that the United States would be neutral in the war between France and Great Britain, which had begun two months before. Members of Washington’s cabinet, including Secretary of State Thomas Jefferson, agreed that the United States was too fragile to become involved in another war. So far, so good.
“While executive orders are attractive to presidents because they can be issued quickly, they can be revoked quickly, too.”
Abraham Lincoln expanded presidential powers via proclamations and executive orders. He did this in the name of suppressing rebellion rather than waging war, since the Constitution gave Congress the power to declare war.
In April 1861, a Maryland militia officer named John Merryman was arrested and detained at Fort McHenry in Baltimore. He was said to have damaged Union facilities and trained Confederate soldiers. His lawyer obtained a writ of habeas corpus from Chief Justice Roger B. Tawney who directed George Cadwalader, the commander at Fort McHenry, to produce Merryman and explain the facts and the legal basis for detention. Cadwalader refused, saying that Lincoln had suspended habeas corpus. Tawney cited him for contempt, but a marshal couldn’t enter the fort to deliver the contempt citation. Tawney wrote what became known as the Ex Parte Merryman opinion, saying, in part, that “If the authority which the Constitution has confided to the judiciary department may upon any pretext be usurped by the military power, the people of the United States are no longer living under a government of laws.”
On September 24, 1862, Lincoln issued a proclamation officially suspending habeas corpus, which meant that the government could detain people indefinitely. Lincoln “managed the home front, in part,”historian Mark E. Neely, Jr. reported, “by means of military arrests of civilians — thousands and thousands of them.”
Lincoln had issued executive orders expanding the amount of Union territory subject to military control, particularly southern Illinois, Indiana and Ohio where “copperheads” were operating. In 1864, the Union army arrested Lambdin Milligan and four others in southern Indiana. They were charged with plotting to free Confederate prisoners-of-war. A military court sentenced the men to death, but they appealed for their constitutional right to habeas corpus. After the Civil War, in 1866, the Supreme Court noted that Indiana wasn’t under attack, and civilian courts were functioning, so Milligan and the others were entitled to a jury trial there. Justice David Davis wrote: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of protection all classes of men, at all times, in all circumstances.”
Historian James G. Randall reflected, “No president has carried the power of presidential edict and executive order — independently of Congress — so far as [Lincoln] did. It would not be easy to state what Lincoln conceived to be the limit of his powers.”
Lincoln’s best-known executive order was the Emancipation Proclamation. He hoped to provoke a slave revolt in the Confederacy and make it easier for the Union to win the Civil War. Accordingly, on September 22, 1862, he issued a preliminary Emancipation Proclamation. It applied to any state that didn’t return to the Union by January 1, 1863. No states returned. At that point, Lincoln issued the historic Emancipation Proclamation. It applied to slaves in the Confederacy — territory that the Union didn’t control. It neither abolished slavery nor extended citizenship to former slaves, but it did make the abolition of slavery a war aim.
Until the early 20th century, executive orders were generally undocumented. They were addressed to a particular government agency which had the only copy. Nobody seemed to know how many executive orders there were. As late as the 1930s, there was an account, published in the New York Times, claiming that “there are no readily available means of ascertaining the true texts and history of the thousand or more executive orders issued since March 4, 1933.”
The peacetime expansion of federal power began with Theodore Roosevelt who issued 1,006 executive orders, more than any previous president. They performed a wide range of administrative functions, especially the disposition of government-owned land.
TR emphatically rejected the view that “what was necessary for the nation could not be done by the President unless he could find some specific authorization to do it…it was not only [the president’s] right but his duty to do anything that the needs of the nation demanded unless such action was forbidden by the Constitution or by the laws.”
TR also said: “I think [the presidency] should be a very powerful office, and I think the President should be a very strong man who uses without hesitation every power the position yields.” He continued, “I believe in a strong executive. I believe in power.”
According to biographer Henry Pringle, “It seldom occurred to Roosevelt that the duty of the executive was to carry out the mandates of the legislative. In so far as he was able, he reversed the theory. Congress, he felt, must obey the president.” He wanted the Supreme Court to obey him, too. Roosevelt acknowledged, “I did greatly broaden the use of executive power.”
At times, TR seemed drunk with power, as when he remarked: “I don’t think that any harm comes from the concentration of power in one man’s hands.”
Woodrow Wilson issued 1,791 executive orders. For instance, executive order 1810 (August 7, 1913) prohibited anyone from operating a flying machine or balloon across the Panama Canal Zone. Wilson issued executive order 1860 (November 11, 1913) to dictate interest rates for the Canal Zone — a surprising number of Wilson’s executive orders had to do with administering that little territory.
Most of Wilson’s executive orders were issued during World War I. For instance, on April 14, 1917, he issued executive order 2594 to establish the Committee on Public Information — war propaganda. On April 28th, he issued executive order 2604 for censorship of messages sent via the trans-Atlantic cables. Executive order 2679-A (August 10, 1917) established the Food Administration. Executive order 2697 (September 7, 1917) required that anyone wishing to export coins, bullion or currency must file an application in triplicate with the nearest Federal Reserve bank. Executive order 2736 (October 23, 1917) authorized Food Administrator Herbert Hoover to requisition food. Executive order 2953 (September 12, 1918) authorized the sale of property seized in accordance with the Trading with the Enemy Act.
Franklin D. Roosevelt issued 3,723 executive orders, more than any other U.S. president. In his Inaugural Address, he said: “I shall ask the Congress for the one remaining instrument to meet the [depression] crisis — broad executive power to wage a war against the emergency, as great as the power that would be given me if we were in fact invaded by a foreign foe.”
On March 6, 1933, FDR issued Proclamation 2029 that cited Wilson’s Trading with the Enemy Act to justify ordering banks closed for a National Bank Holiday.
FDR sent his Emergency Banking bill to the House of Representatives, and it was passed after only 38 minutes of debate — apparently without members reading it.
In 1933, FDR issued executive order 6102 that made it illegal for Americans to own gold bullion or gold certificates, even though historically gold provided the best protection against inflation and monetary crises. Violators faced the prospect of a fine up to $10,000 or up to 10 years in prison.
Since economic fascism was popular during the early 1930s, FDR issued executive orders to suspend antitrust laws and establish German-style cartels in dozens of industries, restricting total industry output, allocating market shares and fixing above-market wages and prices. Above-market wages discouraged employers from hiring, and above-market prices discouraged consumers from buying, so these executive orders weren’t good for the country. Among them:
* 6204-A, for the rayon weaving industry
* 6205-C, for the silk manufacturing industry
* 6216, for the ship building and ship repairing industries
* 6242-B, for electrical manufacturing
* 6248, for the corset and brassiere industries
* 6250, for theaters
* 6253, for the fishing tackle industry
* 6254, for the iron and steel industries
* 6255, for the forest products industry
* 6256, for the petroleum industry
* 6543-A, for the drapery and upholstery industries
With executive orders, FDR multiplied the number of government bureaucracies. He established the Civilian Conservation Corps by issuing executive order 6101. The Public Works Administration followed with executive order 6174. Then came these executive orders:
* 6225, the Central Statistical Board
* 6340, the Commodity Credit Corporation
* 6420-B, the Civil Works Administration
* 6433-A, the National Emergency Council
* 6470, the Public Works Emergency Housing Corporation
* 6474, the Federal Alcohol Control Administration
* 6514, the Electric Home and Farm Authority
* 6581, the Export-Import Bank of Washington
* 6623, the Federal Employment Stabilization Office
* 6632, the National Recovery Review Board
* 6770, the Industrial Emergency Committee
* 6777, the National Resources Board
* 7027, the Resettlement Administration
* 7034, the Works Progress Administration
While some of the programs provided relief for desperate people, they failed to achieve a sustained revival of private sector job creation. Indeed, relief spending was the main reason government spending doubled and taxes tripled during the New Deal era (1933-1940). Where did the tax revenue come from? The biggest source of federal revenue was the federal excise tax on cigarettes, beer, soda, chewing gum and other cheap pleasures consumed disproportionately by poor and middle income people. This means the cost of relief programs for poor and middle income people was borne mainly by poor and middle income people. In May 1939, FDR’s Secretary of the Treasury Henry Morgenthau lamented, “We are spending more than we have ever spent before, and it does not work. After eight years of this administration, we have just as much unemployment as when he started.”
New Deal unemployment averaged 17 percent, and it didn’t go down significantly until the government began removing more than 10 million men from the civilian work force via military conscription for World War II.
FDR’s most controversial executive order was 9066 which he issued on February 19, 1942. It established the War Relocation Authority to forcibly move Japanese-Americans away from the Pacific Coast into “relocation camps” for the duration of World War II. About 70 percent of these people were second-generation, born in the United States. Three individuals, Fred Korematsu, Gordon Hirabayashi and Minoru Yasui, were convicted of refusing to comply with internment. The case went up to the Supreme Court which upheld FDR’s executive order in Korematsu v. United States, 323 U.S. 214 (1944). The majority opinion asserted that protecting against potential Japanese espionage was more important than protecting individual rights. Six of FDR’s 8 appointees sided with him against the interned Japanese. The lone Republican appointee, Owen Roberts, was opposed.
FDR’s Solicitor General Charles Fahey, who argued the case before the Supreme Court, allegedly suppressed reports by the FBI and the Office of Naval Intelligence, showing that there wasn’t any evidence Japanese-Americans posed a security threat to the United States. The suppressed reports came to light years later, and the convictions were overturned November 10, 1983 by the U.S. District Court for the Northern District of California, thereby eliminating the case as a possible precedent for future arbitrary imprisonment.
President Nixon issued two executive orders that had unfortunate consequences.
On August 15, 1971, he announced his New Economic Policy, which happened to be what Bolshevik firebrand Vladimir Lenin called one of his misadventures. Nixon issued executive order 11615 that declared: “to stabilize the economy, reduce inflation, and minimize unemployment, it is necessary to stabilize prices, rents, wages, and salaries.” These controls failed to stop inflation which hit double-digits during the 1970s, and they caused chronic shortages, rationing and business disruption — making it harder to create private sector jobs. By maintaining below-market prices, controls simultaneously encouraged producers to provide less, while encouraging consumers to demand more. Hence, the shortages.
Although this experience with price controls had been a flop, Nixon decided to try again. On June 13, 1973, he signed executive order 11723 that called for a freeze on prices, while he continued to control wages, salaries and rents.
Nixon’s executive orders made a bad situation worse. For instance, his price control administrator C. Jackson Grayson confessed: “lumber controls were beginning to lead to artificial middlemen, black markets and sawmill shutdowns. Companies trapped with low base-period profit margins were beginning to consider selling out those with higher base periods, sending their capital overseas, or reducing their efforts. Instances of false job upgrading — which were actually ‘raises’ in disguise — were reported. To keep away from profit-margin controls, companies were considering dropping products where costs, and thus prices, had increased. And shortages of certain products (like molasses and fertilizer) were appearing because artificially suppressed domestic prices had allowed higher world prices to pull domestic supplies abroad.”
In 1999, Bill Clinton waged war with executive orders. He issued executive order 13088 that declared the governments of the Federal Republic of Yugoslavia (Serbia and Montenegro) and the Republic of Serbia posed “an extraordinary threat to the national security and foreign policy of the United States.” Therefore, Clinton proclaimed a “national emergency.” He ordered the seizure of property belonging to the named governments in the United States, and he prohibited Americans from conducting commercial transactions with those governments. Clinton’s executive order 13119 declared that the region was a war zone. Executive order 13120 summoned military reserve units for active duty.
None of this was authorized by Congress. On the contrary, Congress voted down a resolution to declare war. Congress wouldn’t “authorize” the air war. Clinton ignored Congress and kept America in the war. When, on June 10, 1999, NATO announced it was over, Clinton ordered American soldiers to serve in the Kosovo Force.
Not long after that, we found ourselves in an open-ended national emergency declared on September 14, 2001 and extended since by both George W. Bush and Barack Obama. This means the president has standby powers from hundreds of statutes that would enable him to re-introduce military conscription, seize private property and in myriad ways establish a government-run economy.
How could an executive order be revoked?
First, an executive order can be revoked by another executive order. Probably all presidents revoke some executive orders by their predecessors.
For example, Bill Clinton’s executive order 12919, issued on June 3, 1994, was about national security. It revoked all or part of more than a dozen executive orders issued between 1939 and 1991.
President Obama revoked executive orders 13258 (2002) and 13422 (2007), both of which were issued by George W. Bush, and Obama amended executive order 12866 (1993) which had been issued by Bill Clinton. These executive orders had to do with regulatory processes.
So, while executive orders are attractive to presidents because they can be issued quickly, they can be revoked quickly, too.
Second, an executive order can be revoked by legislation. Reportedly every president since Grover Cleveland has had some of his executive orders modified or revoked by legislation.
The Congressional Research Service cited a number of examples: “in 2006, Congress revoked part of an executive order from November 12, 1838, which reserved certain public land for lighthouse purposes. Congress has also explicitly revoked executive orders in their entirety, such as the Energy Policy Act of 2005 which revoked a December 13, 1912 executive order that created Naval Petroleum Reserve Number 2.” An executive order by President George H.W. Bush, to establish a human fetal tissue bank for research purposes, was revoked when Congress declared that ‘the provisions of Executive Order 12806 shall not have any legal effect.’”
Third, an executive order can be revoked by a federal appeals court or the Supreme Court.
For example, President Clinton’s executive order12954 prohibited the federal government from hiring contractors who replaced strikers. He argued that strikers can become violent when they’re replaced, so it would be better to appease strikers and support union workplace monopolies by banning replacements.
But executive order 12954 conflicted with a 7-0 U.S. Supreme Court decision in NLRB v. Mackay Radio & Telegraph Company, 304 U.S. 333 (1938),. In part, that court decided “[The employer] is not bound to discharge those hired to fill the places of strikers.”
D.C. Circuit Judge Laurence Silberman said, “We think it untenable to conclude that there are no judicially enforceable limitations on presidential actions [enabling] the President to bypass scores of statutory limitations on governmental authority.” Accordingly, the U.S. Court of Appeals for the D.C. Circuit revoked Clinton’s executive order in Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996).
While executive orders look like an easy option for a beleaguered president, they increase the temptation to over-reach. They’re likely to inflame controversy and motivate opponents to further mobilize their forces. In the end, when opponents come to power again, whatever has been established with executive orders is most vulnerable to being swept away by a whirlwind.