Legal News

The Law Blog Goes Back to School: Executive Orders 101

By Ashby Jones

Associated Press

President Bush and President-elect Obama walk along the West Wing Colonnade of the White House in Washington, prior to their meeting in the Oval Office. (AP Photo/Charles Dharapak)

All weekend long, we read and heard references to “executive orders” — chiefly, that through the use of such mechanisms, President-elect Obama planned to overturn Bush Administration policies.

But it struck us at some point during the interview of John Podesta, the head of Obama’s transition team, on Fox News Sunday, that we really had no idea what these orders are all about. Just what types of things can a president “order”? Why don’t they need to be approved by Congress? How and why are they constitutional?

For answers, we called not a lawyer (forgive us, readers), but Kenneth Mayer, a professor of political science at the University of Wisconsin and author of the book: “With the Stroke of a Pen: Executive Orders and Presidential Power.”

Hi Ken. Thanks for taking the time. So where does a president get the power to issue “executive orders?”

Well, the power really derives either from his constitutional power given to him in Article II or from legislative power given to him by Congress. An executive order is really just an instrument of the president’s constitutional or statutory power. They reach as far as the executive power reaches.

For instance, in October of 2001, President Bush issued an executive order establishing the tribunal system for enemy combatants. That was based on his authority as commander-in-chief of the nation’s armed forces. So was the NSA surveillance order, which set up the government’s ability to conduct warrantless wiretaps. Others have included President Truman’s desegregation of the military and President Eisenhower’s decision to send troops to Little Rock. [ed. note: Click here for a more recent example affecting the legal world.]

Do they ever get challenged by Congress or the courts?

They do. But they’re unilateral decisions and are quite powerful. Even where the president doesn’t have the authority, it takes a while for the courts or Congress to challenge it, and by that time typically the policy has been in place for months.

Congress typically has the power to overturn executive orders with legislation, but that’s really pretty rare, on the order of 20 or so in the past 100 years. Other orders have been invalidated by the courts, as the Supreme Court did in the Hamdan ruling and years ago when President Truman tried to take over much of the steel industry. But again, those challenges take time. By the time the Hamdan decision came down invalidating the Guantanamo military commissions, it was 2006, years after Bush’s order went into effect.

Sounds like there’s a lot of gray area with these things.

Yes, there is. A lot of times, they raise deep constitutional issues that don’t have a big, obvious answer. But because challenging them can be such a big job, the president really has the upper hand.

You make them sound fairly controversial.

Well, some are. From time to time, after one’s passed, you’ll hear people say that the government’s unaccountable or that it’s essentially a dictatorship, that kind of thing. But the president really has to have either constitutional or statutory power to issue an order.

There’s been some talk about President-elect Obama changing the policy on funding for stem-cell research. Where does that authority come from?

I’m not sure, but it’s in all likelihood a delegated statutory authority to control the purse strings on research money, something along those lines.

Do you expect Obama to overturn all or most of Bush’s orders?

I doubt it. If there’s ever a time he needs to make decisions, he’s probably going to like the fact that the envelope has been pushed a little. The boundaries between congressional and presidential power are often a little murky. For him to have an existing order to refer to as a sort of precedent for where the line gets drawn might turn out to be helpful down the line.

Thanks much for taking the time.

My pleasure.

Full post as published by Law Blog - WSJ.com on November 10, 2008 (boomark / email).