'Executive Orders and National Emergencies: How Presidents Have Come to "Run the Country" by Usurping Legislative Power' by William J. Olson and Alan Woll

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terms of an executive agreement with Iran.5 8

Federal courts have also upheld presiden-

tial directives that were unauthorized when

Some executive orders cite for their

issued but were subsequently validated by

authority the president's constitutional

Congress via statute. In Isbrandtsen-Moller Co.,

role as commander in chief. In Dooley v.

Inc. v. United States et al.,5 3 the Supreme Court

United States,5 9 the Supreme Court deter-

upheld President Franklin Roosevelt's trans-

mined that the president can rely on his

fer of certain authority from the U.S.

role as commander in chief as authority for

Shipping Board to the Secretary of

the exercise of certain powers during

Commerce, pursuant to EO 6166, where

wartime; however, "the authority of the

Congress had recognized the transfer of

President as Commander in Chief to exact

authority in subsequent acts.

duties upon imports [to Puerto Rico] from

Although federal preemption of state

the United States ceased with the ratifica-

law is best known as a characteristic of con-

tion of the treaty of peace." Thus, the presi-

gressionally enacted statutes, it character-

dent's power to exercise that war power

izes executive regulations as well. Thus, cit-

ceased when the state of war formally

ing Article VI of the Constitution, the

ceased.

Supremacy Clause, the Supreme Court has

When President Truman seized private

accorded such preemptive authority to reg-

U.S. steel mills pursuant to EO 10340, he

ulations authorized by federal statute.54

did so, he claimed, "by virtue of the author-

ity invested in [him] by the Constitution

Consistent with that principle, the Court

and laws of the United States, and as

held that President Richard Nixon's EO

President of the United States and

11491, implementing a federal statute, pre-

empted state law.5 5

Commander-In-Chief of the armed forces

of the United States." When the implemen-

Presidential Directives without Clear

tation of his order was challenged in the

Constitutional or Statutory Authority

federal courts, despite the participation of

Not all presidential directives rely on U.S. troops in Korea during the litigation,

clearly identified constitutional or statuto- the Supreme Court found that the execu-

ry authority. EO 10422, issued by President tive order was invalid because the presi-

Harry Truman on January 3, 1953, actually dent's power to issue the order did not

cited the United Nations Charter as author- "stem either from an Act of Congress or

ity.5 6 It was never challenged in court.

from the Constitution itself."6 0

The Supreme

Other presidents have cited executive

The Court's preference for constitution-

Court found that

agreements--essentially, unratified treaties-- ally enacted laws over presidential directives

the executive

as the basis for their directives. Article VI of not clearly based on constitutional or statu-

the Constitution states, "This Constitution, tory authority is evident from its treatment

order was invalid

and the Laws of the United States which shall of the implementation of regulations pro-

because the presi-

be made in Pursuance thereof; and all mulgated under such directives. For exam-

Treaties made, or which shall be made, under ple, the Court has held that, even though

dent's power to

the Authority of the United States, shall be they were issued to implement EO 11246,

issue the order

the supreme Law of the Land." Executive regulations

promulgated

the

did not "stem

agreements with other nations have no con- Department of Labor did not have the force

stitutional status as treaties and thus are not of law because no statute justified the regu-

either from an

part of the supreme law of the land. lations.6 1

Act of Congress

Nevertheless, in Dames & Moore v. Regan,57

Finally, it is well established that a con-

Justice William Rehnquist, writing for the gressionally enacted statute can modify or

or from the

Court, upheld EO 12276-85 (Carter) and EO revoke a presidential directive. That has

Constitution

12294 (Reagan), which implemented the happened to at least 239 executive orders.6 2

itself."