EXECUTIVE ORDERS AND HOW and WHEN CONGRESS CAN OVERRULE

A Brief History and Examples

Executive Orders have been used by every chief executive since the time of George Washington. Most of these directives were unpublished and were only seen by the agencies involved. In the early 1900s, the State Department began numbering them; there are now over 13,000 numbered orders. Orders were retroactively numbered going back to 1862 when President Lincoln suspended the writ of habeas corpus and issued the Emancipation Proclamation by Executive Order. There are also many other Executive Orders that have not been numbered because they have been lost due to bad record-keeping. Such is not the problem today. All new Executive Orders are easily accessible (see below).

Many important policy changes have occurred through Executive Orders. Harry Truman integrated the armed forces under Executive Order. President Eisenhower used an EO to desegregate schools. Presidents Kennedy and Johnson used them to bar racial discrimination in federal housing, hiring, and contracting. President Reagan used an EO to bar the use of federal funds for advocating abortion. President Clinton reversed this order when he came into office.

President Clinton has come under fire for using the EO as a way to make policy without consulting the Republican Congress (see the quotes at the beginning of this article). Clinton has signed over 300 EOs since 1992. In one case, he designated 1.7 million acres of Southern Utah as the Grant Staircase - Escalante National Monument. He also designated a system of American Heritage Rivers and even fought a war with Yugoslavia under Executive Order.

Controversy

Executive Orders are controversial because they allow the President 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. Sometimes, Congress cannot agree exactly how to implement a law or program. In effect, this leaves the decision to the federal agencies involved and the President that stands at their head. When Congress fails to spell out in detail how a law is to be executed, it leaves the door open for the President to provide those details in the form of Executive Orders.

Congressional Recourse

If Congress does not like what the executive branch is doing, it has two main options. First, it may rewrite or amend a previous law, or spell it out in greater detail how the Executive Branch must act. Of course, the President has the right to veto the bill if he disagrees with it, so, in practice, a 2/3 majority if often required to override an Executive Order.

Congress is less likely to 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. As the Commander-in-Chief of the armed forces, the President is also considered the nation's "Chief Diplomat." In fact, given national security concerns, some defense or security related EOs (often called National Security Directives or Presidential Decision Directives) are not made public.

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. In one such notable instance, President Harry Truman, was rebuked by the Supreme Court for overstepping the bounds of presidential authority. After World War II, Truman seized control of steel mills across the nation in an effort to settle labor disputes. In response to a challenge of this action, the Supreme Court ruled that the seizure was unconstitutional and exceeded presidential powers because neither the Constitution or any statute authorized the President to seize private businesses to settle labor disputes. For the most part, however, the Court has been fairly tolerant of wide range of executive actions.

Contributing Author: Jeffrey C. Fox, Catawba College