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What a President Can Legally Do With a Pen and a Phone, Part I

Presidential PhonePresident Obama brought national attention to the idea of running the country by “executive order” with his now famous:   “I’ve got a pen and I’ve got a phone”. He made that intent clear during the 2013 and 2014 State of the Union Addresses as well:

“… if Congress won’t act soon … I will…  I will direct my Cabinet to come up with executive actions…”  President Barack Obama, State of the Union 2013

“America does not stand still – and neither will I.  So wherever and whenever I can take steps without legislation … that’s what I’m going to do.”  President Barack Obama, State of the Union 2014

These presidential statements, including the “I’ve got a pen and I’ve got a phone” have brought jeers and cheers.  The President’s critics refer to such comments as “imperial” or “dictatorial”.  His supporters call attention to the fact that President Obama, on average has issued fewer “executive orders” than many of his predecessors.

Presidential PenPresidential Hyperbole and Numbers of Orders

Presidential statements about pens, phones and threats to act when Congress have an undemocratic ring to them, but the Constitution grants many presidential powers and Congress by law has delegated others. The number of directives issued by a president does not measure a presidential action’s legality.  Neither presidential hyperbole, nor the numbers of executive orders are proper standards to measure the legality of a president’s actions.

Many presidential orders have no real impact on American life.  Presidents traditionally choose a symbolic turkey and issue proclamations granting that turkey a pardon from becoming Thanksgiving dinner.  A pardon for a turkey is surely consistent with the symbolic nature of the president’s position as Head of State,[1] but has no effect on the lives of Americans.

Presidential directives, orders or proclamations directly affecting the lives of individual Americans are of a different nature.  Such directives must be judged by a president’s legal authority to issue them. The number of orders does not matter, the specific effect of an individual order does.

Cheers or jeers for President Obama’s statements are diversions from real questions about actual orders. Real questions relate to his legal authority for orders issued or contemplated.  An understanding of presidential power beyond knowing he has a pen and a phone is needed.

King George III

King George III

The United States Has a President, Not a King

“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.”[2]

The United States does not have a king, but rather a president, whose oath requires that he: “…will faithfully execute the office of President of the United States, and will … preserve, protect and defend the Constitution of the United States.”  The Constitution further commands the president to: “…take care that the laws be faithfully executed…”

The presidential oath and the Constitution‘s command should be kept in mind when considering if “an “executive order” is legal.

The Constitution and Presidential Power

The principal source of presidential power is the US Constitution’s Article II.  Article II outlines term of office, the selection, the qualifications, the oath, the powers of appointment, the responsibilities and provisions for impeachment.  Article II’s first section states simply:

“The executive power shall be vested in a President of the United States of America.”

When the President issues an executive order, the legal authority for that order must come from specific provisions in the Constitution, a power that’s implied from those Constitutional provisions or authority given to the President by law from Congress.  An order issued not in one of those categories is likely illegal and unconstitutional, violates his oath, and is not the faithful execution of the law.

The following presidential functions are expressly mentioned in the Constitution and provide authority for the President to issue at least some directives:

He can issue directives as:

▪        Commander in Chief of the Armed Forces

▪        Head of the Executive Branch (State, Defense, Treasury, etc.)

▪        Chief Law Enforcement Officer of the United States

▪        Head of State ( principally in charge of foreign affairs)

In the lawful exercise of one of these functions, presidential power to issue orders is broad.  The types of orders may include written directives, guidelines, communiqués, dispatches, or other instructions he deems proper to carry out those functions.

The President also may issue directives in the exercise of authority delegated through law by Congress. Congress may limit delegations in law that to be exercised only in a particular way.

George WashingtonAn Early Presidential Directive Under Express Constitutional Authority

Three months after George Washington was sworn in as President of the United States, he sent an instruction to the holdover officers of the Confederation[3] government asking each of them to prepare a report “to impress me with a full, precise, and distinct general idea of the affairs of the United States” that each handled.  Though the term “executive order” came into use in 1862, President Washington’s instruction was an executive order and decidedly within his power.

Chief executives have the inherent power to order reports by subordinates regarding the performance of their duties. The United States Constitution expressly provides that the President 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”.  President Washington’s order was clearly based upon an expressly given constitutional power.

The First Executive Order Issued Under Delegated Authority

The Constitution is not the only basis for presidential orders. Congress has delegated powers to the president over the years granting him other authority.

On August 7, 1794, President Washington issued a proclamation.[4] The Whiskey Rebellion Proclamation ordered people involved in the rebellion to disperse and called forth the militia to combat the rebellion. Congress had delegated to the President the authority to issue such a proclamation. The President was required by law had to warn citizens to disperse and return to their homes.  He then could call forth the militia to deal with individuals who did not follow this command. While the law allowed the president to use the militia to deal with The Whiskey Rebellion, the law also dictated the warning before he could use the militia.

The Whiskey Rebellion Proclamation is likely the first directive issued pursuant to power delegated by Congress. It also demonstrates how Congress can direct presidential use of delegated power.

The Legal Use of Presidential Directives

There are circumstances where orders are within the express powers of the president and employed for positive achievements.  President Truman, as commander-in-chief, ordered the desegregation of the military.  This was clearly within his power, and perhaps was his duty in light of the 14th Amendment.[5]  Most orders have little effect on the lives of Americans, but they are issued in the thousands and it’s critical to be aware of those that exceed the president’s authority.

Through history, many presidents have gone outside their legal authority.  Part II looks at a few examples and compares some of President Obama’s orders.

Executive Orders Discussed on Constitutionally Speaking

 


[1]“Head of State” refers to an office that embodies the nation.  This may be ceremonial, as the English monarchy has largely become with little legal authority.  The British Prime Minister is England’s “Head of Government”.  In the United States, the president fills both roles, and as Head of State he is also has primary power over foreign affairs.

[2]Supreme Court Justice Robert Jackson, The Steel Seizure Case.

[3]Prior to the Constitution’s ratification, the United States was governed by the Articles of Confederation.

[4]This is another difficulty in trying to measure a president’s abuse of authority by counting “executive orders”.  The orders a president issues can come under many different names:  proclamations, directives, communiqués and more.

[5]Differing treatment of black soldiers and white soldiers based upon race runs counter to the way the 14th Amendment’s Equal Protection Clause has been interpreted.

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