ARE US EXECUTIVE ORDERS CONSTITUTIONAL?

Are US Executive Orders Constitutional? - por: Gerardo E. Martínez-Solanas Posted: 22 Nov 2014 09:11 AM PST Among the main reasons why Democracy has survived in the United States for nearly 2 ½ centuries without any major constitutional reform but limited to a few amendments, are the limitations the Executive Power must respect in acting more as an "administration" than a "government". That is why we refer to the US presidential power as "the Administration". The real "government" rests in Congress, i.e. the people's representatives. In fact, it is the US House of Representatives the institution with Constitutional power to act in the name of US citizens. The Senate acts in the name of the States. That is so because the United States is organized as a Federation of States and the Senate makes all of them equal within the Federal government. Therefore, it is pertinent to question whether Executive Orders are Constitutional. The President of the United States, acting as the head of the Executive Branch, issues Executive Orders (EOs) and they are legally binding to Federal Administrative Agencies within certain Constitutional limitations. They are limited to direct federal agencies and officials in their execution of congressionally established laws or policies. That is, how they should apply and enforce those laws. In other words, they are acting as "the Administration". Congress very seldom challenge EOs that deal with foreign policy, national defense, or the implementation and negotiation of treaties, as these are powers granted largely to the President by the Constitution. However, in many instances EOs have been used to guide agencies in directions contrary to congressional intent. The present Speaker of the House, Bohener, clearly underlined in a July opinion piece in USA Today that “Congress makes the laws; the president executes them. That is the system the Founders gave us. This is not about executive orders. Every president issues executive orders. Most of them, though, do so within the law”. And there lies the problem - EOs should be issued within the spirit and the letter of the Supreme law of the nation (the Constitution). Article II, Section 1 of the Constitution is the President's source of authority to issue Executive Orders as the head of the "executive Power." He should execute and administer the laws of the land and create policy to do so efficiently. That is what Section 3 of Article II means by further directing the President to "take Care that the Laws be faithfully executed." To implement or execute the laws of the land, Presidents give direction and guidance to Executive Branch agencies and departments, often in the form of EOs. Executive Orders are controversial when the President makes use of this power to make major decisions, even law, without the consent of Congress. This, of course, runs against the general logic of the Constitution – that no one should have power to act unilaterally. Nevertheless, Congress often gives the President considerable leeway in implementing and administering federal law and programs. In practice, a 2/3 majority if often required to override an Executive Order. However, the US Constitution is clear in Article I, Section 8 about the powers of Congress and there is no exception limiting the Legislative Power in favor of the Executive Power in the process of law making. In general, Congress is the branch of government in charge of issuing the laws of the country, of controlling the budget and the national debt, and of declaring war, among other Constitutional rules. Therefore, Congress has a right to challenge EOs issued contrary to Congressional intent. In addition to congressional recourse, Executive Orders can be challenged in court, usually on the grounds that the Order deviates from "congressional intent" or exceeds the President's constitutional powers. The President has thus the obligation to work with Congress to implement national policies. It is not allowed by the Constitution to act on his own, no matter how rightful he believes his actions are. The only exceptions are emergencies and/or national defense in case of an act of war. But these are only emergency powers and do not replace legislative action. The President may appeal to the people in a confrontation with Congress asking them to exert pressure on their representatives or asking them to vote in favor of candidates more in tandem with his policy orientations when mid-term elections allow constituents to elect a new congressional majority. President Obama had a solid majority in the House and Senate during the first two years of his mandate. That was his chance to pass a reform under his guidelines and approved through Congressional debate. No matter how much many Americans like Obama's initiatives, it is a fact that voters chose to have a clear Republican majority in both houses of Congress for the last two years of his Administration. Instead of Executive Orders of doubtful Constitutional legality, he should take historical lessons from Ronald Reagan and Bill Clinton in their successful deals with adversarial Congress majorities to reach workable solutions. That is the real seal of a good government.