Do Executive Orders Violate the Constitution ?

Posted on January 12, 2013

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The Myths

Presidents can issue executive orders that are legally binding on the general public. 

These executive orders are backed by the full force of law just like laws passed through the formal legislative process.

 A president can use executive orders to go around congress.

The president can use executive orders to modify laws passed by congress and can order executive departments to selectively enforce provisions of laws.

These executive orders are authorized by the Constitution.

The Truth

Yes the president can issue executive orders however these orders are only binding on members of the executive department of the federal government. They are not legally binding on anyone outside the executive department.

Only laws passed through the formal legislative process have full force of law. Executive orders do not meet this requirement.

Congress alone has the power to write and pass laws.  If congress chooses not to pass laws that the president advocates for the president can in no way act unilaterally. The president is restrained by the Constitution.

The president must enforce laws that are passed by the formal legislative process as they are written.  If the president does not like a bill passed by congress or feels it violates the Constitution then the president can veto it before it becomes law.  

Issuing executives orders that are given the full force of law is a clear violation of several provisions of the Constitution.

The Facts

The framers of the Constitution greatly feared concentration of power into a strong tyrannical central government so they incorporated many features in the Constitution that they believed would prevent this from happening. The Constitution created a government with three distinct branches.  Each branch is granted separate distinct powers that are clearly spelled out in the Constitution.  This separation of powers is one of the cornerstones of the Constitution that they believed would prevent concentration of power.

Article 1 Section 1 of the Constitution states that Congress is the only branch that is granted legislative power.  The definition of legislative power used by the framers of the Constitution is the most universally accepted one, the power to write and pass laws.

Article 1 Section 7 defines the formal legislative process.  Laws are not valid unless they are passed through this process.

Article 2 Section 1 states that executive power is granted to the President.  Executive power is most commonly defined as: the authority to enforce laws and to see that they are carried out. 

Article 2 Section 2 lists the powers of the president. Nowhere in this section or the rest of the Constitution is the president granted the power to write laws.

Article 2 Section 3 lists the duties of the president.  The second from the last clause states “the president must take care that laws are faithfully executed.”  If the president modifies laws through executive orders or selectively enforces provisions of laws through executive orders the president is violating this clause

Article 6 Section 2, which is the supremacy clause, defines what the law of the land is.  Executive orders are not listed in the supremacy clause therefore they are not the law of the land.  Only laws that do not violate the Constitution are the law of the land.  Because executive orders are issued by the executive department outside of the formal legislative process and their contents most often violate provisions of the Constitution they are not the law of the land

The Proof

Article 1 Section 1 – Legislative powers

All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Definition of Legislative Power

the exercise of the power and function of making rules (as laws) that have the force of authority by virtue of their promulgation by an official organ of a state or other organization

Article 1 Section 7—Legislative Process

 House to originate all revenue bills. Veto. Bill may be passed by two-thirds of each House, notwithstanding, etc. Bill, not returned in ten days to become a law. Provisions as to orders, concurrent resolutions, etc.

1. All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.

2. Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the president of the United States; if he approve, he shall sign it, but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration, two thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the president within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

3. Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the president of the United States; and before the same shall take effect, shall be approved by him, or, being disapproved by him, shall be re-passed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.

Article  2 Section 1

The Executive power shall be vested in a President of the United States of America

Definition of Executive Power

Authority to enforce laws and to ensure they are carried out as intended.

Powers of the President

Article 2 Section 2 – President to be Commander-in-Chief. He may require opinions of cabinet officers, etc., may pardon. Treaty-making power. Nomination of certain officers. When President may fill vacancies.

1. 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 offenses against the United States, except in cases of impeachment.

2. 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.

3. The President shall have the 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.

Duties of the President

Article 2 Section 3 President shall communicate to Congress. He may convene and adjourn Congress, in case of disagreement, etc. Shall receive ambassadors, execute laws, and commission officers.

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 may 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.

The Supremacy Clause

Article 6 Section 2. This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.

Federalist 47 by James Madison

No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.

…these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying ”There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or, ”if the power of judging be not separated from the legislative and executive powers,” he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted.

The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law

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