Gary is an author, trial lawyer, Mequon-area resident and town of Cedarburg supervisor. He is a columnist for the News Graphic and writes for several Wisconsin area magazines and is a national columnist with The American Thinker and PJ Media. He lives with his wife, Lisa, and has three sons ages 18 to 28. Gary won Ozaukee County in his bid for the Wisconsin Assembly's 60th District in 2011, but came up just 58 votes short.
President Barack Obama has a new “go-it-alone” strategy which he highlighted in his recent State of the Union Speech. His tool will be something called “executive orders.” Also known as “proclamations”, these executive orders have been used by every president since George Washington to act decisively in times of war, respond quickly to natural disasters or economic crises, to encourage or discourage regulation by federal agencies, or to promote civil rights. In his speech, Obama said:
What I offer tonight is a set of concrete, practical proposals to speed up growth, strengthen the middle class, and build new ladders of opportunity into the middle class. Some require Congressional action, and I’m eager to work with all of you. But America does not stand still – and neither will I. So wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do.
The party not in power hates executive orders – until they’re in power. When George Bush was president, then-Senator Obama criticized executive orders, saying, “There is no shortcut to politics, and there’s no shortcut to democracy.” It is true that “Progressive” Democrat presidents have broken all the records with regard to the number of executive orders issued. George Bush issued 291 such orders compared to Bill Clinton’s 364. But Franklin Roosevelt broke all the records, issuing 3,522 executive orders, roughly a fourth of the total number issued by all other presidents combined. Interestingly, even the Emancipation Proclamation issued by Abraham Lincoln was a combination of two executive orders – one on September 22, 1862 stating that if the rebels didn’t end the Civil War by the end of the year all slaves would be declared free, and (being careful to respect the limits of his authority and justify it as a war measure necessary to cripple the Confederate Army) one on January 1, 1863, declaring that slaves in only four states to be free It only freed slaves in specific areas (didn’t apply to border states or areas under Union control) still rebelling against the Union because Lincoln had no actual power to free slaves in areas under Confederate control. Slavery actually wasn’t outlawed until the 13th Amendment became law on December 18, 1865. Barack Obama is on the low end when it comes to the number of executive orders issued when you consider the total number of executive orders issued – a mere 168.
In the spring of 2012, President Obama issued an aggressive string of executive orders to combat what he viewed as hopelessly-deadlocked Congress. Some of his more controversial, and arguably unconstitutional executive orders are as follows:
1. Directed the Justice Department to stop defending the Defense of Marriage Act;
2. Gave states waivers from federal mandates if they agreed to education overhauls;
3. Changed significant provisions of and the timing of Obamacare;
4. Declared an anti-gay-rights law unconstitutional;
5. Reshaped immigration policy by ordering the federal government to halt deportation of certain illegal immigrants.
Each unilateral action by the president substituted for a failed legislative proposal. "I've got a pen, and I've got a phone," he said. However, under the Constitution, that is not the way things are supposed to work. When asked recently whether the president has the constitutional authority to act on climate change without congressional approval, Sen. Ted Cruz (R-Texas) said that the president has asserted power that he simply doesn’t have and that his disregard for the Constitution “threatens the liberty of every American.”
So is our president taking unprecedented imperialistic action into his own hands and playing King within our Constitutional Republic when he issues the executive orders he has issued? Or is this just more political party rancor and a bitter GOP taking swipes at a president desperate to accomplish something before his time in office is done? There are legitimate executive orders and there are illegal actions which violate the Constitution. Knowing which are which requires a lawyer. So, I decided to conduct a legal analysis of a few of President Obama’s executive orders to see if they constitute legitimate extensions of the president’s authority, or something more along the lines described by Senator Cruz.
Constitutional Executive Orders
An executive order is a directive handed down directly from the executive branch of government without input or oversight from the legislative or judicial branches. Executive orders are hard to accurately categorize because they take so many forms. There are executive orders, proclamations, directives, memos and other orders which allow a president to get his way on certain issues within the limits of the Constitution and federal law. Proclamations, for example, are like executive orders, but are aimed at people who are not within the government. Executive orders are directed toward people within the government. The president’s directive to raise the minimum wage for new federal contractors is an executive order. His action to anti-deportation order came out as a policy memo from his Homeland Security secretary. The U.S. Constitution does not specifically mention executive orders, but presidents argue that the power to issue them is implied in the following statements in Article II of the Constitution:
- "The executive power shall be vested in a President of the United States"
- "The President shall be Commander in Chief of the Army and Navy of the United States"
- "He shall take care that the laws be faithfully executed"
Those who argue against or urge limits on the use of the unilateral power associated with executive orders remind us that the American system of checks and balances is undermined if we give the power to issue “executive legislation” to the executive branch. Legal scholars disagree even on whether there's a constitutional "bright line" that defines what a president can do on his own and what requires congressional action. Here is where it gets interesting. Executive orders can and routinely are challenged in court and can be overruled by the judicial branch or nullified by the legislative branch after the fact. To determine the constitutionality of an executive action, the U.S. Supreme Court must look at the “character” of the actions taken and their subject in order to determines whether the action taken is excessive and unconstitutional. The nation’s highest court has not left our president without guidelines.
Youngstown Sheet & Tube Co. v. Sawyer
In 1952, the Supreme Court decided the case of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), also known as “The Steel Seizure Case.” At the height of the Korean War, President Truman was faced with a strike of the nation’s major steel producers by the U.S. Steel Workers of America. Instead of invoking the emergency provisions of the Taft-Hartley Act (which had been passed by Congress over Truman’s veto) to prevent the union from striking or using the Defense Production Act (which would have legally allowed seizure of the plants), Truman passed over Congress and issued an executive order seizing their production facilities and kept management in place. A federal judge issued an injunction barring the government from holding the steel plants and the case was appealed to the U.S. Supreme Court, which declared that the President had no power to act, except in those cases expressly or implicitly authorized by the Constitution or an Act of Congress.
It was Justice Robert Jackson's concurring opinion, however, which the Youngstown decision will be remembered for. Justice Jackson noted that the President's authority to issue executive orders (EO) and proclamations can be broken down into three categories:
(1) Those issued pursuant to an express or implied authorization of Congress. Here the president’s authority is at its maximum. The EO is invalid only if the federal government as a whole lacks authority to do what the EO does.
(2) Those based upon undefined powers that lay in a "zone of twilight" where the President acts solely on the basis of his independent power and Congress has not spoken. Congressional inactivity or indifference may sometimes enable measures on independent presidential responsibility. In this area, the validity of the EO depends on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
(3) Those incompatible with the expressed or implied will of Congress, and thus rely solely upon his constitutional authority. Here presidential EO power is at its lowest, and must be scrutinized with caution before being taken, because the EO is only constitutional if a court can disable the Congress from acting on the subject.
With regard to this third type of EO, Justice Jackson warns that what is at stake is the American system of checks and balances – the very equilibrium established by our constitutional system. Here we must recall that our current president has shown a heightened ambition to “get around” the U.S. Constitution he swore to uphold and protect. In “The Audacity of Hope,” he wrote that he could not reject “the school of thought that sees the Founding Fathers only as hypocrites and the Constitution only as a betrayal of the grand ideals set forth by the Declaration of Independence.” Later, in a 2001 interview with Chicago public radio station WBEZ, State Senator Obama stated:
The Constitution is a charter of negative liberties, says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf.
Thirty years later the Supreme Court reviewed President Carter’s EO seizing of Iranian assets in response to the Iran Hostage Crisis, as well as President Reagan’s ratification of that EO. In Dames & Moore v. Regan, 453 U.S. 657 (1981), the presidents’ actions were held constitutional because they were done specifically pursuant to congressional authorization and, therefore, because they involved national security and Congress had acquiesced in the president’s actions, were issued pursuant to the strongest of presidential authority.
President Obama’s five executive orders above are clearly unconstitutional under the guidelines set forth by the U.S. Supreme Court because the five executive orders are not only merely “incompatible” with the expressed or implied will of Congress, they directly contravene, change, or alter acts of Congress in violation of the separation of powers and the U.S. Constitution. Congress set forth specific deadlines and enforcement laws with regard to the implementation of Obamacare and the president has changed them on his own authority because it was politically advantageous to do so. Congress enacted the Defense of Marriage Act and Obama’s executive order to stop defending it is directly contrary to the will and intent of Congress. He has declared certain laws “unconstitutional” – something that not even the most radical liberals have suggested is within the purview of the executive branch. He has also halted the enforcement of existing immigration policy enacted by Congress pursuant to their congressional authority on his own initiative because he simply didn’t like the law. Lastly, he has exempted a number of states from the No Child Left Behind Law which was duly passed by Congress. And these are just the tip of the iceberg.
On Monday, February 10, 2014, the Obama Administration announced yet another unconstitutional edict. This time the regime has reversed Congress once again, pronouncing that it will violate the Affordable Care Act's employer mandate for the second consecutive year - in direct violation of the law Congress voted on and passed. Obama's Treasury Department said it will delay the mandate's penalty another year for small businesses with 50 to 99 employees and will also adjust some of the requirements for larger employers. Under the Executive Branch's new legislation - passed without a single vote in Congress, businesses with 100 or more employees must offer coverage to at least 70% of full-time workers in 2015 and 95% in 2016. Congess didn't debate and pass this law and Obamacare provided quite differently. Our president just willed the new laws into existence. These are clearly unconstitutional proclamations committed for purely political reasons.
The uninformed supporters of our president blindly defend this usurpation of executive power by noting that “all presidents issue executive orders”, but there has never been a president in history who has so brazenly sidestepped Congress’ powers and usurped the role of lawmaker. It is now also clear that the nation’s attorney general is of absolutely no help in giving our president guidance on this subject. In responding to questions at a Senate hearing recently, Eric Holder was asked to explain to Congress why he thought Barack Obama was within his constitutional limits when he reversed Congress by issuing an executive order to delay Obamacare’s employer mandate. After Senator Mike Lee (R-Utah) read to him the above Supreme Court’s rulings on the matter, Holder replied:
I’ll be honest with you, I have not seen — I don’t remember looking at or having seen the analysis in some time, so I’m not sure where along the spectrum that would come.”
Armed with his radical pen, President Obama has fulfilled the words of humorist Will Rogers, who observed that Congress doesn't make laws anymore, "they just wave at the bills as they go by." It is no wonder that many members of Congress are truly wondering if they really are the nation’s lawmakers any more.