Above the President

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Thursday, June 23, 2005

Lawmaking by Fiat

Author's Note: This article was first published on Jen's Patriot Act on August 24, 2004.

"The principles of a free Constitution are irrevocably lost when the legislative power is dominated by the executive”

-- Edward Gibbon

Only Congress has the power to create legislation under the Constitution. Presidents may recommend legislation, and they have the power to veto any new laws that come out of Congress, but they do not have the power to create it directly. In this way, the Framers sought to enforce a doctrine of “separation of powers” upon the newly created federal government. Power that properly belongs to one department of government should not to be directly and completely administered by any of the other departments. The Framers did this because they believed that the accumulation of all powers (legislative, executive and judicial) into the same hands was a starting point for tyranny. One way in which they attempted to prevent any such accumulation and consolidation of lawmaking power, was to keep legislative power firmly out of the hands of the executive.

The Framers gave each branch of government “checks and balances” to limit the power of the other two branches. These “checks and balances” are an essential aspect of the doctrine of separation of powers. James Madison, the fourth president of the United States and one of the fathers of the Constitution, felt that simply delineating “on paper” the proper responsibilities of each branch of government, without providing each branch with real “checks and balances” against the power of the others, did not provide enough protection against the possibility of tyrannical accumulation of power in the hands of the few [1]. So although the Framers gave Congress the power to create new legislation, they also gave the president the power to veto any laws passed by Congress. If the president does decide to send a bill back to Capitol Hill, his veto will be overridden if two-thirds of both houses vote against his decision (within a reasonable timeframe, of course). If Congress successfully overrides the president’s veto, the bill will become law regardless of what the president may or may not want. Nevertheless, since getting two-thirds of both houses of Congress to agree on anything is quite a challenge, the presidential veto has become a very powerful “check and balance” indeed. Often, the mere threat of a veto by the president is enough to force Congress to reconsider its actions.

Separation of powers may slow down the process of lawmaking, but it helps preserve liberty. James Madison devotes most of Federalist No. 47 to the doctrine of separation of powers, wherein he quotes Montesquieu:

“When the legislative and executive powers are united in the same person or body, there can be no liberty, because apprehension may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.” [2]
The importance of separation of powers was also succinctly expressed by Supreme Court Justice Louis Brandies in the 1926 Supreme Court decision of Myers v. U.S.:

““The doctrine of separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of governmental powers among three departments, to save the people from autocracy. … Speed and efficiency, however, are not the proper ends of government. If they were, the framers would have created a dictatorship.”[3]
Only under the most extreme conditions of emergency should the president have the power to arbitrarily create new legislation on his own or without consulting Congress, and even here the justification for presidential edicts can be debated by people of good faith. One example of such a national emergency might be if Congress itself did not exist. In fact just such a situation did arise during the Civil War, as we shall shortly see. Nevertheless, allowing the president to bypass separation of powers and create new laws arbitrarily is tantamount to permitting a dictatorship to rule the nation. Understand also that if the president is allowed to exercise arbitrary law-making power while Congress is in session, the existence of such an Oval Office dictatorship might be largely unseen and “invisible” to the public masses, whose attention – in terms of lawmaking – is focused instead upon Congress.

In fact, U.S. presidents have been engaged in precisely this kind of extra-Constitutional lawmaking ever since the days of George Washington. Today, the mechanism through which presidents are able to wield such extraordinary power is known as the Executive Order (or simply EO for short), although that phrase did not come into common usage until the 20th century. There is no federal statute that explicitly permits the president to issue EOs, nor there is any Constitutional basis for such executive authority, other than the vague grant of “executive power” made in Article II, Section 1 of the U.S. Constitution, and the phrase “take Care that the Laws be faithfully executed” found in Article II, Section 3. Nevertheless, the Executive Order has evolved into one the most powerful, and most commonly used, legal procedures in Washington. As Tom Sargentich of American University’s Law School recently stated in testimony before the House Rules Committee, “There can be no doubt that presidential ‘lawmaking’ by executive order is a central phenomenon in modern governance.” [4]

Some form of Executive Order has been in use since the early days of the Republic. Many experts agree that the nation’s first Executive Order was issued by none other than George Washington himself on June 8, 1789. In it he required the various departments within the Executive Branch to give him a clear and precise accounting of affairs conducted within their departments [5]. Other historians argue that the nation’s first true Executive Order was issued by Abraham Lincoln at the start of the Civil War. On March 27, 1861, seven Southern states walked out of Congress, thereby ending the quorum needed for Congress to conduct business. Without a quorum, Congress adjourned sine die, or “without day,” and effectively ceased to exist. When the attack on Fort Sumter occurred several weeks later on April 12, 1861, Lincoln found that the only branch of government legally authorized to declare war no longer existed. In order to call Congress back into session (by force) and so as to mobilize Northern troops in the war effort (which would have otherwise required Congressional approval), Lincoln issued his “Proclamation Calling Militia and Convening Congress” on April 15, 1861. This edict called for 75,000 troops to put down the rebellion the South, and ordered Congress to reconvene on July 4, 1861 [6]. Some historians still refer to this presidential edict as “Executive Order No. 1.”

The historical confusion over who issued which Executive Order when stems largely from the fact that until the 20th century, presidential edicts were not always publicly announced or documented, and were often only seen by the agencies to which they were directed. When they were publicly announced, they were not consistently termed “Executive Orders” and there was no numbering system in place as there is today. This changed in 1907 when the State Department instituted the numbering system we now use to keep track of EOs, starting with Abraham Lincoln’s Emancipation Proclamation (September 23, 1862) [7].

One very important thing to realize about Executive Orders is that presidents often justify their use through the declaration of a state of national emergency. This line of thinking owes much to the 17th century political philosopher John Locke. Locke argued that the threat of national emergencies and of sudden, unforeseen and potentially catastrophic crises required broad executive emergency powers to be exercised by the Chief Executive. In the 14th chapter of his Second Treatise on Civil Government, Locke writes that emergency power

“.. should be left to the discretion of him that has the executive power .. since in some governments the lawmaking power is not always in being and is usually too numerous, and so too slow for the dispatch requisite to executions, and because, also it is impossible to foresee and so by laws to provide for all accidents and necessities that may concern the public, or make such laws as will do no harm, if they are executed with an inflexible rigour on all occasions and upon all persons that may come in their way, therefore there is a latitude left to the executive power to do many things of choice; which the laws do not prescribe.” [8]
To what extent the Framers of the Constitution actually agreed with Locke on this subject (among others) remains a hotly debated issue. Writing in 1952, Supreme Court Justice Robert Jackson rejected the appeal for inherent presidential powers arising out national emergencies. Instead, he noted that the Framers of the Constitution “knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.” [9] Judge Jackson concluded his deliberations by writing that “with all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the executive be under the law, and that the law be made by parliamentary deliberations.” [9] The wisdom of the Founding Fathers notwithstanding, national emergencies have been routinely used throughout the 20th century to expand the power of the presidency through the use of Executive Order.

Up until the early 1900s (and even during the Civil War period), presidents used the power of Executive Order rarely, if at all. Prior to President Grant, no chief executive had ordered more than 80 EOs [5]. Some presidents, such as Rutherford B. Hayes, never even issued any EOs at all [10]. This attitude of self-imposed restraint all began to change dramatically in the 20th century, however. Theodore Roosevelt was the first president to make extensive use of the power of Executive Order, issuing over 1,000 EOs during his two terms in office, as well as instituting the modern EO numbering system (as was mentioned above) [10]. Woodrow Wilson continued building upon Teddy’s legacy of executive excess by issuing well over 1,700 EOs during his administration, and Franklin Delano Roosevelt still holds the World EO Record with an astonishing 3,723 Executive Orders signed into law during his 12 years in office(!) [10]. More recent administrations, like those of Bill Clinton and George W. Bush, have seen a fewer (though still alarming) number of roughly 300 or so EOs enacted while the president is in office.

Many notable events in U.S. history that have occurred as a consequence of presidential Executive Order. Some of these include:

-The formation of the FBI on July 26, 1908 by Theodore Roosevelt

-Franklin Delano Roosevelt’s declaration of a “Bank Holiday” on March 5, 1933, one day after being sworn into office

-The seizure of all privately owned gold in the United States, by Franklin Delano Roosevelt on April 5, 1933

-The forced internment of 110,000 U.S. citizens of Japanese descent, some of them 4th generation Americans, by Franklin Delano Roosevelt on February 19, 1942

-The creation of the Central Intelligence Group in January 1946 by Harry Truman. The Central Intelligence Group, successor to the OSS, would later become known as the CIA after Congress passes the National Security Act in 1947

-Nixon’s unilateral decision on August 15, 1971 to abandon the Bretton Woods agreement and the international gold standard.

-Clinton’s 1995 financial bailout package for Mexico.

-Clinton’s 1999 Kosovo War.

-The formation of the Department of Homeland Security on October 8, 2001 by George W. Bush.

Many citizens are concerned that Executive Orders are increasingly being used to secretly militarize the United States. For instance, during the Kennedy Administration a series of Executive Orders were issued that paved the way for the possible creation of a shadow, military government. Kennedy signed these EOs in early 1962, just several months before the Cuban Missile Crisis. Some of these EOs include the following:

EO 10995: allows the government to seize and control communications media.
-EO 10997: allows the government to take over all electrical power, gas, petroleum, fuels and minerals.

-EO 10998: allows the government to take over all food resources and farms.

-EO 10999: allows the government to take control of all transportation.

-EO 11000: allows the government to mobilize civilians into work brigades under government supervision (i.e., slave labor.

-EO 11001: allows the government to take over all health, education and welfare functions.

-EO 11002: designates the Postmaster General to operate a national registration of all persons.

-EO 11003: allows the government to take over all airports and aircraft, including commercial aircraft.

-EO 11004: allows the government to relocate communities, build new housing with public funds, designate areas to be abandoned, and establish new locations for populations.

-EO 11005: allows the government to take over railroads, inland waterways and public storage facilities.

These and other Executive Orders were consolidated into EO 11490 by President Carter in 1979. Carter also formalized the unconstitutional Federal Emergency Management Agency (FEMA) by signing EO 12148 into law on July 20, 1979. Government officials had been planning the creation of FEMA since at least as far back as the Kennedy administration. EO 12148 reflects this long-range strategic thinking by consolidating a number of pre-existing EOs relating to federal emergency management, some of which include:

-EO 11051: grants FEMA the right to execute any and all other EOs relating to federal emergency management during times of increased international tension or economic crisis.

-EO 11310: requires the Justice Department to enforce any and all powers granted to FEMA during a crisis.

-EO 11921: prevents Congress from reviewing a presidential declaration of emergency for at least six months.
Other Executive Orders which have drawn the attention of concerned citizens include EO 12919 which gives the federal government vast powers to seize property and control the means of production and require all citizens to register with the U.S. Post Office. EO 13139 denies U.S. soldiers the right to refuse experimental vaccines. Interestingly this was signed into law by President Clinton one day after Congressional hearings into a controversial Pentagon decision to require U.S. military personnel to be inoculated with anthrax vaccine. The vaccine in question had not yet been approved by the Food and Drug Administration.

Perhaps the most alarming thing about Executive Orders today is that they are largely issued in secret. In March, 1987, Representative Jack Brooks asked presidential aide Frank Carlucci to provide a list of all presidential edicts issued since 1981. Carlucci refused to comply. House Speaker Jim Wright weighed in on the matter by saying “Congress cannot react responsibly to new dictates for national policy set in operation by the executive branch behind closed doors.” [11] Today it’s not uncommon for EOs to be classified on grounds of “national security.”

We have now over 13,500 Executive Orders in effect in the United States. The sheer number of such arbitrary dictatorial decrees should give the average citizen a moment’s pause. Even worse, the other two branches of government have been negligent in their responsibility to curb the excesses of the Executive branch’s use of EOs. Out of the 13,500+ EOs that have been issued to date, only two have ever been successfully overturned by the judicial system. The first case occurred when President Truman issued Executive Order 10340 in April 1952, whereby he attempted to nationalize the U.S. steel industry so as to end a nation-wide strike. The steel mills, perhaps somewhat surprisingly, did not contest the claim that the government could take over their property in an emergency. Rather, they insisted that the wrong branch of government was taking action against them, and proceeded to sue the president on behalf of Congress on the basis that the presidential order had violated the Constitutional doctrine of separation of powers. The case went all the way to the Supreme Court, which noted that Congress had already considered and rejected legislation that would have legitimized a national takeover of the steel industry in times of national emergency, and promptly overturned Truman’s EO. Since then presidents have often been a little more careful about trying to cite the specific laws they are allegedly furthering when creating new Eos. More recently, President Clinton had an executive order (one that barred the federal government from contracting with companies that hire permanent strikebreakers) overturned by the D.C. Court of Appeals in 1996 on grounds that it was unconstitutional [12].

If the Supreme Court has simply been negligent in standing up to the president on the issue of Executive Orders, one could conclude that Congress has been downright subversive in terms of aiding and abetting presidential usurpation of its constitutional lawmaking powers. A 1973 Senate Report entitled “War and Emergency Powers Acts (Senate Report 93-549),” co-authored by Senators Frank Church and Charles Mathias, found that since 1933 Congress had passed or recodified at least 470 federal statutes that delegate to the President powers which, constitutionally, can only be executed by Congress. The senators described the this transfer of power to be nothing short of “awesome” in scale, and note these power transfers were often made in times of (real or imagined) national “crisis” - ostensibly to address the problems of governing more effectively in times of emergency [13].

Consider once again the wise words of Supreme Court Justice Louis Brandies regarding the importance of the doctrine of separation of powers:

“The doctrine of separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of governmental powers among three departments, to save the people from autocracy. … Speed and efficiency, however, are not the proper ends of government. If they were, the framers would have created a dictatorship.”[3]
One may reasonably infer that separation of powers is effective only insofar as the branches of government are creating the friction of which Brandies speaks. If instead, the separate branches of government begin to “cooperate” with each other, working hand-in-hand to enlarge each other’s domain, the size of government will necessarily grow, and with it grows the risk of tyranny from within. This manner of cooperation and collusion between Congress and the president is precisely what Senate Report 93-549 indicates has been happening for most of the 20th century.

Not everyone in Congress is negligent, however. One Congressman, Republican Representative Ron Paul of Texas, has had the courage to speak out and take action against the abuses of Executive Orders and other presidential edicts. Paul and Jack Metcalf (R-WA) introduced . H.R. 2655 (also known as the Separation of Powers Restoration Act) in 1999. The congressmen drafted this legislation in part as a response to Presidential Decision Directive-25 (PDDs are a new form of Executive Order), signed into law by President Clinton on May 3, 1994 [14]. PDD-25, like so many other modern presidential edicts, remains classified on grounds of “national security,” although the Clinton administration published a 15-page “unclassified summary” of PDD-25 shortly after approving it. Among other things, PDD-25 allows the U.S. military to be mobilized under U.N. command without congressional approval [15]. The Separation of Powers Act would have prohibited a presidential edict from having the effect of law. It would have suspended ongoing states of national emergency (there are currently at least 13 national emergencies in effect right now, some of them dating at least as far back as 1933), and it would have granted individuals the right to challenge of constitutionality of Executive Orders.

The bill was rejected by Congress.

REFERENCES

[1] James Madison, Federalist No. 48, “These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other.”

[2] James Madison, Federalist No. 47, “The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts.”

[3] U.S. Supreme Court, Myers v. United States, 272 U.S. 52 (1926), Section 85.

[4] U.S. House of Representatives Committee on Rules, Hearing of the Subcommittee on Legislative and Budget Processes. “Impact of Executive Orders on the Legislative Process: Executive Lawmaking?” October 27, 1999, Witness Tom Sargentich (online reference:

[5] U.S. House of Representatives Committee on Rules, Hearing of the Subcommittee on Legislative and Budget Processes. “Impact of Executive Orders on the Legislative Process: Executive Lawmaking?” October 27, 1999, Background

[6] “Proclamation Calling Militia and Convening Congress”, Abraham Lincoln, April 15, 1861

[7] Definition of Executive Order

[8] John Locke, “Second Treatise of Civil Government”, published 1690; Chapter 14 (“Of Perogative”), Section 159

[9] Youngstown Sheet & Tube Co. v Sawyer, 343 U.S. 579, Decided: June 2, 1952.

[10] Cato Institute, Policy Analysis, No. 358, “Executive Orders and National Emergencies: How Presidents Have Come to ‘Run the Country’ by Usurping Legislative Power”, by William J. Olson and Alan Woll, October 28, 1999,

[11] Treason: The New World Order, by Guduras, 1996, Cassandra Press, p. 49.

[12] Forbes Magazine, “Executive Disorders”, Dan Seligman, July 3, 2000

[13] “Senate Report 93-549: War and Emergency Powers Acts”, November 19, 1973, Frank Church and Charles Mathias.

[14] “’Command’ versus ‘Operational Control’A Critical Review of PDD-25”:, by J. William Snyder, Jr.

[15] “Battle for War Powers”, The New American, Vol. 13, No. 1, January 6, 1996

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