Such EOs are the perfect embodiment of what the Founders feared the most: the combining of the legislative, executive, and judicial functions into one body. Article I, Section 1 of the Constitution says: “All legislative powers herein shall be vested in a Congress of the United States.” As Thomas Eddlem, writing for The New American, expressed it, “then it stands to reason [that] none is left for the president.”
But Joe Wolverton, also in The New American, pointed out the particular piece of language the Founders used to limit the powers of the president which totalitarians have twisted to allow such powers to expand: the “take care” clause, to wit: Article II, Section 3: he [the president] shall take care that the laws be faithfully executed…
With every EO, the president avoids the cumbersome constitutional safeguards spelled out by the Constitution, and uses them to implement policies he “knows” are right. Says Wolverton: “With every one of these … executive orders, then, the president elevates his mind and will above that of the people, Congress and the courts.”
The current administration has had a lot of help in justifying and codifying the legitimacy of executive orders, going all the way back to President George Washington who in 1793 issued his “Neutrality Proclamation,” which declared that the United States would remain neutral in the current conflict between France and Great Britain, and would bring sanctions against any American citizen who attempted to provide assistance to either party. The language of Washington is eerily similar to that used by President Obama in the present case:
I have therefore thought fit by these presents to declare the disposition of the United States to observe the conduct aforesaid toward those powers respectively, and to exhort and warn the citizens of the United States carefully to avoid all acts and proceedings whatsoever which may in any manner tend to contravene such disposition…
I have given instructions to those officers to whom it belongs to cause prosecutions to be instituted against all persons who shall, within the cognizance of the courts of the United States, violate the law of nations with respect to the powers at war, or any of them.
When James Madison protested Washington’s usurpation of powers not intended for the president, Congress acquiesced and passed, retroactively, the Neutrality Act of 1794, validating Washington’s usurpation.
President Lincoln engaged in similar usurpations, using presidential “directives” to run the early months of the Civil War, presenting Congress with, as Todd Gaziano put it,
the decision either to adopt his [directives] as legislation or to cut off support for the Union army.
Within his first two months in office, on April 15, 1861, Lincoln issued a proclamation activating troops to defeat the Southern rebellion and for Congress to convene on July 4.
He also issued proclamations to procure warships and to expand the size of the military; in both cases, the proclamations provided for payment to be advanced from the Treasury without congressional approval.
These latter actions were probably unconstitutional, but Congress acquiesced in the face of wartime contingencies, and the matters were never challenged in court.
President Franklin Roosevelt often overlooked the niceties of constitutional restraints as well. As Gaziano expressed it, “FDR also showed a tendency to abuse his executive order authority and [to] claim powers that were not conferred on him in the Constitution or by statute.”
As far as numbers of executive orders issued, Obama is a piker. At the moment, although the list is growing, his administration has issued only 900 or so executive orders. President Theodore Roosevelt issued 1,006 while President Woodrow Wilson issued 1,791. Even President Calvin Coolidge used the EO “privilege” 1,253 times.
The granddaddy of them all, FDR, issued an astounding 3,728 executive orders, but of course he was in office longer than Obama.
President Bill Clinton issued only 364 executive orders, but he made the most of them, using this extra-legal power to, among other things, wage war in Yugoslavia without congressional approval. Cliff Kincaid collated the numerous EOs issued by Clinton in 1998 and 1999, and concluded:
Clinton waged his war on Yugoslavia through executive order and presidential directive. Clinton used executive orders to designate a “war zone,” call up troops, proclaim a “national emergency” with respect to Yugoslavia, and impose economic sanctions on the Belgrade government.
Clinton claimed war-making presidential authority through his “constitutional authority” to conduct “foreign relations,” as “Commander in Chief” and as “Chief Executive.” Under this self-designated authority, Clinton delegated command-and-control of U.S. forces to NATO and its Secretary-General Javier Solana, who decided when the air war would be discontinued…
The most outrageous executive order of all time was that issued by President Roosevelt that allowed the enforced internment of 120,000 Japanese-Americans: 9066.
Congressman Ron Paul (R-Texas) called EOs patently unconstitutional. When asked about them by Fox News’ Megan Kelly, Paul responded:
The Constitution says that only Congress passes laws. The executive branch is not allowed to pass laws, nor should the judicial system pass laws. So it is clearly unconstitutional to issue these executive orders.
They’ve been done for a long time, both parties have done it, but the Congress is careless. They allow and encourage and do these deals … to get the president to circumvent the Congress. If something’s unpopular and he can’t get it passed, well, let’s just sign an executive order. So I think that is blatantly wrong. I think this defies everything the founders intended. I think it’s a shame that Congress does it, and I think it’s a shame that the American people put up with it.
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