In the 2014 State of the Union, President Obama promised “a year of action” and declared independence from Congress as he vowed to tackle economic disparity with a series of limited initiatives that he will enact without legislative approval.
“I’m eager to work with all of you,” Obama told lawmakers of both parties. “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.”
Republicans cried foul, with one House member going so far as to call Obama a “socialist dictator” and Sen. Ted Cruz (R-Tex.) labeling Obama’s tenure an “imperial presidency” in an op-ed for the Wall Street Journal. “Of all the troubling aspects of the Obama presidency,” Cruz wrote, “none is more dangerous than the president’s persistent pattern of lawlessness, his willingness to disregard the written law and instead enforce his own policies via executive fiat.”
As The Washington Post recently noted, however, President Obama has exercised his executive authority sparingly. In fact, Obama has issued fewer executive orders than any president in over 100 years. As you can see from the graph below, Obama has issued fewer executive orders per day in office than conservative heroes like George W. Bush, Ronald Reagan, and Calvin Coolidge. You have to go all the way back to Grover Cleveland to find a president who has issued executive orders at a lower rate than Obama.
Raw totals do not account for the scope and tangible impact of individual executive orders, but they do give a sense of how hesitant President Obama has been to exercise/test his executive authority to advance his agenda without input from Congress. Despite this, however, outraged Republicans are looking to the judicial branch to step in.
“We can go to court,” Sen. John McCain (R-Ariz.) told The Hill. “We haven’t got many more options except [to] tell the American people that we’re seeing an abuse of the intent of the Constitution.”
Here’s the surprising thing: the Republican decision to challenge Obama’s executive order may not be a bad thing.
Whatever you think of Republicans’ resistance to increasing the minimum wage, and regardless of whether you think President Obama should issue bypass Congress to advance a more progressive agenda, a legal challenge to any such executive order would benefit Congress and the public. Executive orders, if issued under a valid claim of authority and published, have the full force and effect of law and courts are required to take judicial notice of their existence. As a consequence, executive orders have important constitutional implications, particularly with respect to the separation of powers. And despite the fact that executive orders can be traced back to George Washington, the legal ambiguity underpinning them poses a great concern for both Congress and the public.
The Constitution does not contain any provisions that define executive orders. Similarly, there is no specific provision authorizing their issuance. As such, authority for the execution and implementation of executive orders stems from implied constitutional and statutory authority. Historically, Presidents have relied upon Article II of the Constitution, which states that “the executive power shall be vested in a President of the United States,” that “the President shall be Commander in Chief of the Army and Navy of the United States,” and that the President “shall take Care that the Laws be faithfully executed.”
Despite the amorphous nature of the authority to issue executive orders, Presidents have not hesitated to wield this power over a wide range of often controversial subjects. And the Supreme Court, moreover, has upheld all but two legal challenges to them.
The proper framework for analyzing executive orders is derived from Youngstown Sheet & Tube Co. v. Sawyer. In Youngstown, the Supreme Court held that under the Constitution, “the President’s power to see that laws are faithfully executed refutes the idea that he is to be a lawmaker.” Specifically, Justice Black’s opinion maintained that presidential authority to issue an executive order “must stem either from an act of Congress or from the Constitution itself.”
However, although the majority opinion in Youngstown appeared to refute the notion that the President possesses implied constitutional powers, it is important to note that there were five concurrences in the case, four of which maintained that implied presidential authority adheres in certain contexts. Of those concurrences, Justice Jackson’s opinion has proven to be the most influential, even eclipsing the impact of Justice Black’s majority opinion.
Justice Jackson’s concurrence in Youngstown established a tripartite scheme for analyzing the constitutionality of presidential actions in relation to constitutional and congressional authority. According to Jackson, where the President acts according to an express or implied grant of congressional authority, his “authority is at its maximum” and such action “is supported by the strongest of presumptions and the widest latitude of judicial interpretation.” Secondly, in situations where Congress has neither granted nor denied authority to the President, the President acts in reliance only “upon his own independent powers” and such action exists in “a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” The third and final category involves instances where presidential action is “incompatible with the express or implied will of Congress.” In such a situation, the power of the President is “at its minimum,” and the Courts can uphold the measure “only by disabling the Congress from acting upon the subject.”
After Youngstown, as more complex situations have arisen, the Supreme Court has made modifications to Justice Jackson’s standards, which Jackson himself admitted were “oversimplified.” In AFL-CIO v. Kahn, for example, the District of Columbia Court of Appeals established a “nexus” test in upholding President Carter’s executive order directing the Wage and Price Stability Council to establish voluntary wage and price standards for noninflationary behavior for the entire economy and making compliance with those guidelines a factor in determining whether a company could receive a government contract. According to the court, there was a sufficiently close nexus between President Carter’s executive order and the Procurement Act, the statute upon which it relied, thus rendering the order constitutional.
Despite this, there has been much confusion and controversy since the first presidential proclamation was issued by President George Washington. The Framers of the Constitution left the question of executive authority open to interpretation. And although the Supreme Court has developed some clarifying guideposts, the degrees of presidential authority in issuing executive orders and proclamations is subject to persistent debate.
As such, it is important to examine the legal basis for each executive order and presidential memoranda issued and the manner in which the President has used these instruments. As CNBC’s Mark Koba recently noted, however, “The debate over executive orders usually comes down to political bickering: The party that’s out of the White House traditionally rails against them, but orders are suddenly OK when it gets back in.”
It shouldn’t matter which political party the President belongs to, or whether you support the initiative advanced by the executive order. President Obama’s decision to sign an executive order raising the minimum wage of federal contractors to $10.10 is very likely constitutional. But when it comes to the Constitution, and in particular with respect to the separation of powers, clear judicial limitations on the exercise of power are almost always warranted.