Legal Authority for Executive Orders

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Lincoln was the first to approach 50 with 48 executive orders. Ulysses Grant was the first to reach 200 to 217, and he held this record until the arrival of Theodore Roosevelt (1,081). Other major issue of executive orders include Woodrow Wilson (1,803), Calvin Coolidge (1,203), Herbert Hoover (968) and Harry Truman (907). With the exception of William Henry Harrison, every president since George Washington in 1789 has issued orders that may be commonly referred to as executive orders. Initially, they did not take a fixed form and therefore varied in form and substance. [8] According to political scientist Phillip J. Cooper, a presidential proclamation “establishes a condition, declares a law and requires obedience, recognizes an event or triggers the implementation of a law (recognizing that the circumstances have been realized in the law).” [32] Presidents define situations or conditions as situations that become a legal or economic truth. These decrees have the same force of law as decrees, except that executive orders are addressed to those who are part of the government, but proclamations are addressed to those who are not part of the government. A: Every president since George Washington has issued executive orders. Over the past 50 years, presidents have issued executive orders during their tenure, rising from a peak of 381 (Ronald W. Reagan, 1981-1989) to a low of 166 (George H.W. Bush, 1989-1993). Franklin D.

Roosevelt (1931-1945) issued 3,522 executive orders than any other president. Five of these orders were overturned by the U.S. Supreme Court in 1935. Nevertheless, when Washington began to implement the policy of neutrality, its administration engaged in activities that seemed terribly legislative. In July 1793, for example, the Washington cabinet produced a set of “rules for belligerents” that instructed U.S. citizens how to interact with foreign warships in the United States. Ports. [4] While these rules were motivated by a desire to enforce U.S.

neutrality policy, they showed how “faithful enforcement” can open the door to some degree of executive “legislation” in the form of discretionary decisions about how the law is applied. Washington has been criticized for exceeding its Article II powers and encroaching on the legislative toes of Congress. However, the passage of the Neutrality Act by Congress in 1794, which authorized the government to prosecute those who violated the Proclamation of Neutrality, provided a seal of congressional approval covering Washington`s legal bases. Like laws and orders issued by government agencies, decrees are subject to judicial review and can be repealed if they are not supported by law or constitution. Some policy initiatives require legislative approval, but decrees have a significant impact on the internal affairs of government, deciding how and to what extent laws are enforced, managing emergencies, waging wars, and generally refining policy decisions in the implementation of general laws. As head of state and head of government of the United States and commander-in-chief of the armed forces of the United States, only the President of the United States can issue an executive order. Since George Washington, our presidents have issued many forms of directives, the most famous being executive orders and two others: presidential memorandums and presidential proclamations. (An 1863 proclamation by Abraham Lincoln declares that students are taught in school with some simplification: “freed the slaves.”) The history of the EOs, from Washington`s declaration of neutrality to President Trump`s travel bans, seems to confirm Jackson`s prediction. Sometimes presidential actions in the “twilight zone” go unchallenged or end up receiving congressional approval; In other cases, legal challenges or political reactions control this exercise of presidential power. Just as the scope of executive power remains contested, so does the validity of decrees issued in the “twilight zone”.

The basic legal authority of POs therefore derives from Article II of the Constitution – a particular EV is legitimate if the President uses it for promotion purposes and as part of his duties under Article II. The difficulty with this EO legality story, however, is that the extent of the president`s power is often hotly contested and, frankly, unclear. As an example, consider the controversy surrounding George Washington`s first presidential proclamation. As the French War of Independence took on a global dimension in 1793, the Washington government sought to pursue a position of U.S. neutrality. While a broad reading (advocated by Alexander Hamilton) of the president`s “executive power” under Article II suggested that Washington could make this policy decision unilaterally, Washington actually considered reconvening Congress so that the position could be explained by the legislature, not the executive. This showed Washington`s appreciation for a narrower interpretation of executive power, which James Madison particularly supported. Madison believed that the president`s primary duty was to diligently execute laws passed by Congress. They therefore viewed with skepticism the president`s actions that are not expressly authorized by the Constitution or federal law. A unilateral declaration of neutrality by the president certainly raised eyebrows, as not only did it shift the outer limits of the president`s constitutionally enumerated power, but it also closely resembled the kind of presidential legislation that would exclude the separation of powers from the constitution.

[3] And President Harry Truman ordered equal treatment of all members of the armed forces by decree. However, Truman also saw one of his most significant executive orders struck down by the Supreme Court in 1952 at a turning point for the court in defining the president`s powers in relation to Congress. President Roosevelt issued the largest number of executive orders, according to the National Archives. It issued 3,728 orders between 1933 and 1945, as the country battled the Great Depression and World War II. Much more can be said about EOs, but including all of this here would lead to the Moby-Dick of blog posts. If you`re still puzzled about the details of the executive orders, we recommend reading “Executive Orders in Court,” a note from Erica Newland`s Yale Law Journal that explores order-in-council jurisprudence and analyzes the federal judiciary`s inconsistent approach to OP interpretation. You may also want to read “The President`s Enforcement Power,” a 2013 article in the N.Y.U. Law Review by Professor Kate Andrias, who served as Special Assistant and Associate Counsel to the President of the United States and Chief of Staff to the White House Attorney`s Office during the Obama administration. Professor Andrias discusses the different ways in which modern presidents have influenced the law enforcement activities of authorities, including through the use of executive orders. It recognizes the constitutional issues inherent in these efforts and calls for greater coordination and disclosure of implementation in order to improve the efficiency and accountability of the administrative state.