Presidential Executive Order - Defined

Postby Gary Triplett » Wed Nov 07, 2012 8:14 am

Presidential Executive Orders

Proposed Amendments of Presidential Executive Order here in "The Peoples Congress"
National Emergencies Act (50 U.S.C. 1601-1651)
50 USC Chapter 35 - INTERNATIONAL EMERGENCY ECONOMIC POWERS

And what do these laws allow a president to do?

Pretty much as he damn well pleases.

And how could a president do pretty much as he damn well pleases?

Did you ever hear of something called an "Executive Order?"

An Executive Order (EO) is an order issued by the president when he (or she, potentially) decides that there is a situation of such gravity that it must be addressed immediately rather than wait for Congress to get back into town. An EO does not require Congressional approval but becomes the law of the land as soon as the president signs it. Thus, an EO has the full authority of the federal government behind it, just like any other law enacted by Congress, and can only be overturned by a specific act of Congress or by being declared unconstitutional by the Supreme Court.

In the past, Executive Orders have been used to imprison a million or so Japanese (Franklin Roosevelt, 1942) and to fight an undeclared (but politically motivated) war with Yugoslavia (Bill Clinton, 1998).

Let the following quotations explain the love that presidents have for Executive Orders.

"Stroke of the pen; Law of the Land; kinda cool." (Former Clinton Administration advisor Paul Begala, New York Times, July 5, 1998).

"We've switched the rules of the game. We're not trying to do anything legislatively." (Then-Interior Secretary Bruce Babbitt, Washington Times, June 14, 1999).

In other words, so long as he has the support of Congress, a president can simply make law as he or she sees fit! It is the unquestioning support of Congress that could make a president into a dictator. This brings us back to the quotation, above.

The quote was taken from Franklin Roosevelt's first Inaugural Address, in which he placed the blame for the then-current economic depression squarely at the feet of "Wall Street" and "Big Business" rather than where that blame actually belonged: on the Congress and its inane tariff policies as well as those citizens that had borrowed more money than they could ever hope to repay.

Congress, of course, rubber-stamped every proposed law that Roosevelt submitted to it, without question, and with total disregard to each law's potential unconstitutionality. Whether or not Roosevelt's actions were justifiable, given the context of the era, is immaterial. There is but one point that Americans should keep in mind.

The combination of a charismatic leader, an easily-duped electorate, and the popular perception of an existing "emergency" can lead all too easily lead to a dictatorship; be it a dictatorship of the majority or of a minority. If you think that I might be exaggerating with that statement, does the name "Hitler" ring a bell?

The circumstances, both then and today, are frighteningly similar. Just remember, Hitler's actions in assuming control of Germany were perfectly legal under the then-existing laws. One he had the Reichstag is his pocket the rest, as they say all too often, was history.


A presidential policy directive that implements or interprets a federal statute, a constitutional provision, or a treaty.

The president's power to issue executive orders comes from Congress and the U.S. Constitution. Executive orders differ from presidential proclamations, which are used largely for ceremonial and honorary purposes, such as declaring National Newspaper Carrier Appreciation Day.

Executive orders do not require congressional approval. Thus, the president can use them to set policy while avoiding public debate and opposition. Presidents have used executive orders to direct a range of activities, including establishing migratory bird refuges; putting Japanese-Americans in internment camps during World War II; discharging civilian government employees who had been disloyal, following World War II; enlarging national forests; prohibiting racial discrimination in housing; pardoning Vietnam War draft evaders; giving federal workers the right to bargain collectively; keeping the federal workplace drug free; and sending U.S. troops to Bosnia.

Historically, executive orders related to routine administrative matters and to the internal operations of federal agencies, such as amending Civil Service Rules and overseeing the administration of public lands. More recently, presidents have used executive orders to carry out legislative policies and programs. As a result, the executive order has become a critical tool in presidential policy making. For example, President John F. Kennedy used an executive order to eliminate racial discrimination in federally funded housing (Exec. Order No. 11,063, 3

C.F.R. 652 [1959–1963], reprinted in 42 U.S.C.A. § 1982 app. at 6-8 [1982]); President Lyndon B. Johnson acted through an executive order to prohibit discrimination in government contractors' hiring practices (Exec. Order No. 11,246, 3C.F.R. 339 [1964–1965], reprinted in 42 U.S.C.A. § 2000e app. at 28-31 [1982], amended by Exec. Order No. 11,375, 3 C.F.R. 684 [1966–1970], superseded by Exec. Order No. 11,478, 3 C.F.R. 803 [1966–1970], reprinted in 42 U.S.C.A. § 2000e app. at 31-33 [1982]); and President richard m. nixon used an executive order to set a ninety-day freeze on all prices, rents, wages, and salaries in reaction to rising inflation and unemployment (Exec. Order No. 11,615, 3C.F.R. 602 [1971–1975], amended by Exec. Order No. 11,617, 3 C.F.R. 609 [1971–1975], superseded by Exec. Order No. 11,627, 3 C.F.R. 621 [1971–1975]).

Most executive orders are issued under specific statutory authority from Congress and have the force and effect of law. Such executive orders usually impose sanctions, determine legal rights, limit agency discretion, and require immediate compliance. Federal courts consider such orders to be the equivalent of federal statutes. In addition, regulations that are enacted to carry out these executive orders have the status of law as long as they reasonably relate to the statutory authority. An administrative action that is carried out under a valid executive order is similar to an agency action that is carried out under a federal statute. In each case, the agency's authority to enact rules and to issue orders comes from Congress.

Absent specific statutory authority, an executive order may have the force and effect of law if Congress has acquiesced in a long-standing executive practice that is well-known to it. For example, in Dames v. Regan, 453 U.S. 654, 101 S. Ct. 2972, 69 L. Ed. 2d 918 (1981), the U.S. Supreme Court upheld various executive orders that suspended claims of U.S. nationals arising out of the Iranian hostage crisis, citing Congress's Acquiescence in a 180-year-old practice of settling U.S. citizens' claims against foreign governments by executive agreement. In describing the situation before it, the Court stated,

We freely confess that we are obviously deciding only one more episode in the never-ending tension between the President exercising the executive authority in a world that presents each day some new challenge with which he must deal and the Constitution under which we all live and which no one disputes embodies some sort of system of checks and balances.

Executive orders also may be authorized by the president's independent constitutional authority (Cunningham v. Neagle, 135 U.S. 1, 10S. Ct. 658, 34 L. Ed. 55 [1890]). Various clauses of the U.S. Constitution have been cited to support the issuance of executive orders. Among them are the Vestiture Clause, which states, "The executive Power shall be vested in a President of the United States of America" (art. II, § 1, cl. 1); the Take Care Clause, which states that the president "shall take Care that the Laws be faithfully executed" (art. II, § 3); and the Commander in Chief Clause, which states that the president "shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States" (art. II, § 2, cl. 1).

Executive orders often omit citing a specific constitutional provision as authority. For example, Executive Order No. 11,246 (3 C.F.R. 339 [1964–1965 Comp.]), which prohibits discrimination in federal employment, simply states, "Under and by virtue of the authority vested in me as President of the United States by the Constitution and statutes of the United States, it is ordered as follows …"

Some executive orders issued pursuant to the president's independent constitutional authority have been criticized as implementing what has been called essentially executive managerial policy. Although this type of order is directed toward public officials, it also may affect private interests, through the actions of such officials. For example, Executive Order No. 11,246, which prohibits discrimination in federal procurement and employment, affects the interests of federal contractors and their employees; Executive Order No. 10,988 (3 C.F.R. 521 [1959–1963 Comp.]), which extends Collective Bargaining to the federal workforce, affects federal workers; and Executive Order No. 12,291 (3 C.F.R. 127 [1982]), which imposes controls on administrative rule making, affects individuals who are subject to administrative regulations.

Lawsuits that are brought in order to force federal agencies to comply with executive orders are usually dismissed by the courts on the ground that the orders do not provide a Cause of action (i.e., a right to judicial relief). For example, in Acevedo v. Nassau County, 500 F.2d 1078 (2d Cir. 1974), low-income minority groups claimed that the General Services Administration had violated Executive Order No. 11,512 (35 Fed. Reg. 3,979 [1970]) by planning a federal office building without considering the adequacy of low-income housing in the area. The federal court of appeals refused to decide the claim because the plaintiffs lacked standing (i.e., a legally protectible interest). In Manhattan-Bronx Postal Union v. Gronouski, 350 F.2d 451 (D.C. Cir. 1965), the court denied a claim against the postmaster general for violating Executive Order No. 10,988 (3 C.F.R. 521 [1959–1963]), because the president had not granted a right of action. In Independent Meat Packers Ass'n v. Butz, 526 F.2d 228 (8th Cir. 1975), the appellate court stated that to infer a cause of action would create "a serious risk that a series of protracted lawsuits brought by persons with little at stake would paralyze the rulemaking functions of federal administrative agencies."

Similarly, the courts generally reject claims against private defendants for violations of executive orders. For example, in Cohen v. Illinois Institute of Technology, 524 F.2d 818 (7th Cir. 1975), 425 U.S. 943, 96 S. Ct. 1683, 48 L. Ed. 2d 187 (1976), the appellate court denied a professor's claim against a university to recover damages for Sex Discrimination in violation of Executive Order No. 11,246, stating that the executive order could not give rise to an independent private cause of action.

To have the effect of law, executive orders must appear in the Federal Register, the daily publication of federal rules and regulations. Executive orders are also compiled annually and are published in the Code of Federal Regulations. Selected orders are published with related statutes in U.S. Code Annotated and U.S. Code Service.

Executive orders have been used to influence issues in hundreds of areas. War-related activities are among the most frequently addressed. For example, in September 1939, President Franklin D. Roosevelt prescribed regulations governing the enforcement of the neutrality of the United States "in the war then being fought between Germany and France; Poland; and the United Kingdom, India, Australia, and New Zealand" (Exec. Order No. 8,233, 4 Fed. Reg. 3,822). By February 1942, the United States had joined World War II, and Roosevelt had ordered the confinement of Japanese-Americans to internment camps following the bombing of Pearl Harbor in January 1941 (Exec. Order No. 9,066, 7 Fed. Reg. 1,407). In March 1947, following the war, President Harry S. Truman established loyalty review boards to discharge civilian government employees who had been disloyal during the war (Exec. Order No. 9835, 3 C.F.R. 627 (1943–1948), revoked by Exec. Order No. 10,450, 3 C.F.R. 936 (1949–1953). In January 1977, following the Vietnam War, President jimmy carter directed the U.S. attorney general to cease investigating and indicting Vietnam War draft evaders (Exec. Order No. 11,967, 42 Fed. Reg. 4,393). In December 1995, President Bill Clinton ordered the U.S. reserve armed forces into active duty to augment the active armed forces' operations in and around the former Yugoslavia (Bosnia) (Exec. Order No. 12,982, 60 Fed. Reg. 63,895).

Following the September 11th terrorist attacks on the United States, President George W. bush used his authority to issue a number of executive orders. Following his declaration of a national emergency on September 14, 2001, he called members of the armed forces' Ready Reserve to active duty (Exec. Order No. 13,223, 66 Fed. Reg. 48201). Ten days later, he issued an executive order that blocked the financing of terrorist organizations (Exec. Order No 13,224, 66 Fed Reg. 49079). President Bush also created the Homeland Security Department by executive order, before Congress authorized this cabinet-level department (Exec. Order No. 12,228, 66 Fed.Reg. 51812).

U.S. Presidents have issued executive orders since 1789, usually to help officers and agencies of the executive branch manage the operations within the federal government itself. Executive orders have the full force of law, since issuances are typically made in pursuance of certain Acts of Congress, some of which specifically delegate to the President some degree of discretionary power (delegated legislation), or are believed to take authority from a power granted directly to the Executive by the Constitution. However, these perceived justifications cited by Presidents when authoring Executive Orders have come under criticism for exceeding Executive authority; at various times throughout U.S. history, challenges to the legal validity or justification for an order have resulted in legal proceedings.

In other countries, similar edicts may be known as decrees, or orders in council.

Although there is no Constitutional provision or statute that explicitly permits executive orders, there is a vague grant of "executive power" given in Article II, Section 1, Clause 1 of the Constitution, and furthered by the declaration "take Care that the Laws be faithfully executed" made in Article II, Section 3, Clause 5. Most Executive Orders use these Constitutional reasonings as the authorization allowing for their issuance to be justified as part of the President's sworn duties, the intent being to help direct officers of the US Executive carry out their delegated duties as well as the normal operations of the federal government: the consequence of failing to comply possibly being the removal from office.

Criticisms:

Critics have accused presidents of abusing executive orders, of using them to make laws without Congressional approval, and of moving existing laws away from their original mandates. Large policy changes with wide-ranging effects have been effected through executive order, including the integration of the armed forces under Harry Truman and the desegregation of public schools under Dwight D. Eisenhower.

One extreme example of an executive order is Executive Order 9066, where Franklin D. Roosevelt delegated military authority to remove any or all people (used to target specifically Japanese Americans and German Americans) in a military zone. The authority delegated to General John L. DeWitt subsequently paved the way for all Japanese-Americans on the West Coast to be sent to internment camps for the duration of World War II.

Executive Order 13233, which restricted public access to the papers of former presidents, was more recently criticized by the Society of American Archivists and other groups, stating that it "violates both the spirit and letter of existing US law on access to presidential papers as clearly laid down in 44 USC. 2201–07," and adding that the order "potentially threatens to undermine one of the very foundations of our nation." President Obama later revoked Executive Order 13233 in January 2009.

Legal conflicts:

To date, U.S. courts have overturned only two executive orders: the aforementioned Truman order, and a 1995 order issued by President Clinton that attempted to prevent the federal government from contracting with organizations that had strike-breakers on the payroll. Congress was able to overturn an executive order by passing legislation in conflict with it during the period of 1939 to 1983 until the Supreme Court ruled in Immigration and Naturalization Service v. Chadha that the "legislative veto" represented "the exercise of legislative power" without "bicameral passage followed by presentment to the President."[9] The loss of the legislative veto has caused Congress to look for alternative measures to override executive orders such as refusing to approve funding necessary to carry out certain policy measures contained with the order or to legitimize policy mechanisms. In the former, the president retains the power to veto such a decision; however, the Congress may override a veto with a two-thirds majority to end an executive order. It has been argued that a Congressional override of an executive order is a nearly impossible event due to the supermajority vote required and the fact that such a vote leaves individual lawmakers very vulnerable to political criticism.
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Postby Gary Triplett » Wed Nov 07, 2012 8:23 am

Executive Orders And Laws relating to National Emergencies Laws
United States Code TITLE 50 - WAR AND NATIONAL DEFENSE
CHAPTER 34 - NATIONAL EMERGENCIES


SUBCHAPTER I - TERMINATING EXISTING DECLARED EMERGENCIES


Section 1601. Termination of existing declared emergencies

(a) All powers and authorities possessed by the President, any other officer or employee of the Federal Government, or any executive agency, as defined in section 105 of title 5, as a result of the existence of any declaration of national emergency in effect on September 14, 1976, are terminated two years from September 14, 1976. Such termination shall not affect -

(1) any action taken or proceeding pending not finally concluded or determined on such date;
(2) any action or proceeding based on any act committed prior to such date; or
(3) any rights or duties that matured or penalties that were incurred prior to such date.

(b) For the purpose of this section, the words "any national emergency in effect" means a general declaration of emergency made by the President.

SUBCHAPTER II - DECLARATIONS OF FUTURE NATIONAL EMERGENCIES

Section1621. Declaration of national emergency by President; publication in Federal Register; effect on other laws; superseding legislation

(a) With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.

(b) Any provisions of law conferring powers and authorities to be exercised during a national emergency shall be effective and remain in effect

(1) only when the President (in accordance with subsection (a) of this section), specifically declares a national emergency, and

(2) only in accordance with this chapter. No law enacted after September 14, 1976, shall supersede this subchapter unless it does so in specific terms, referring to this subchapter, and declaring that the new law supersedes the provisions of this subchapter.

Section1622. National emergencies

(a) Termination methods
Any national emergency declared by the President in accordance with this subchapter shall terminate if -

(1) there is enacted into law a joint resolution terminating the emergency; or

(2) the President issues a proclamation terminating the emergency. Any national emergency declared by the President shall be terminated on the date specified in any joint resolution referred to in clause (1) or on the date specified in a proclamation by the President terminating the emergency as provided in clause (2) of this subsection, whichever date is earlier, and any powers or authorities exercised by reason of said emergency shall cease to be exercised after such specified date, except that such termination shall not affect -

(A) any action taken or proceeding pending not finally concluded or determined on such date;
(B) any action or proceeding based on any act committed prior to such date; or
(C) any rights or duties that matured or penalties that were incurred prior to such date.

(b) Termination review of national emergencies by Congress
Not later than six months after a national emergency is declared, and not later than the end of each six-month period thereafter that such emergency continues, each House of Congress shall meet to consider a vote on a joint resolution to determine whether that emergency shall be terminated.

(c) Joint resolution; referral to Congressional committees; conference committee in event of disagreement; filing of report; termination procedure deemed part of rules of House and Senate

(1) A joint resolution to terminate a national emergency declared by the President shall be referred to the appropriate committee of the House of Representatives or the Senate, as the case may be. One such joint resolution shall be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee, unless such House shall otherwise determine by the yeas and nays.

(2) Any joint resolution so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents) and shall be voted on within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays.

(3) Such a joint resolution passed by one House shall be referred to the appropriate committee of the other House and shall be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee and shall thereupon become the pending business of such House and shall be voted upon within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays.

(4) In the case of any disagreement between the two Houses of Congress with respect to a joint resolution passed by both Houses, conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such joint resolution within six calendar days after the day on which managers on the part of the Senate and the House have been appointed. Notwithstanding any rule in either House concerning the printing of conference reports or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than six calendar days after the conference report is filed in the House in which such report is filed first. In the event the conferees are unable to agree within forty-eight hours, they shall report back to their respective Houses in disagreement.

(5) Paragraphs (1)-(4) of this subsection, subsection (b) of this section, and section 1651(b) of this title are enacted by Congress -

(A) as an exercise of the rulemaking power of the Senate and the House of Representatives, respectively, and as such they are deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in the House in the case of resolutions described by this subsection; and they supersede other rules only to the extent that they are inconsistent therewith; and

(B) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.

(d) Automatic termination of national emergency; continuation notice from President to Congress; publication in Federal Register Any national emergency declared by the President in accordance with this subchapter, and not otherwise previously terminated, shall terminate on the anniversary of the declaration of that emergency if, within the ninety-day period prior to each anniversary date, the President does not publish in the Federal Register and transmit to the Congress a notice stating that such emergency is to continue in effect after such anniversary.

SUBCHAPTER III - EXERCISE OF EMERGENCY POWERS AND AUTHORITIES

Section 1631. Declaration of national emergency by Executive order; authority; publication in Federal Register; transmittal to Congress

When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act. Such specification may be made either in the declaration of a national emergency, or by one or more contemporaneous or subsequent Executive orders published in the Federal Register and transmitted to the Congress.

SUBCHAPTER IV - ACCOUNTABILITY AND REPORTING REQUIREMENTS OF PRESIDENT

Section1641. Accountability and reporting requirements of President

(a) Maintenance of file and index of Presidential orders, rules and regulations during national emergency

When the President declares a national emergency, or Congress declares war, the President shall be responsible for maintaining a file and index of all significant orders of the President, including Executive orders and proclamations, and each Executive agency shall maintain a file and index of all rules and regulations, issued during such emergency or war issued pursuant to such declarations.

(b) Presidential orders, rules and regulations; transmittal to Congress

All such significant orders of the President, including Executive orders, and such rules and regulations shall be transmitted to the Congress promptly under means to assure confidentiality where appropriate.

(c) Expenditures during national emergency; Presidential reports to Congress

When the President declares a national emergency or Congress declares war, the President shall transmit to Congress, within ninety days after the end of each six-month period after such declaration, a report on the total expenditures incurred by the United States Government during such six-month period which are directly attributable to the exercise of powers and authorities conferred by such declaration. Not later than ninety days after the termination of each such emergency or war, the President shall transmit a final report on all such expenditures.
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