Thursday, February 2, 2017

What, Exactly, Are Executive Orders?

Since the new President has signed 19 executive orders since he took the oath of office on 20 January 2017, I decided to discover what I could about an "Executive Order."  The newly elected 45th President has signed orders and memoranda that range from freezing all pending regulations until his administration has approved them, to a controversial immigration order barring citizens and refugees from seven Muslim-majority nations from entering the United States.
   It's been a dizzying 13 days from the paper-pushers within the Circus Peanut's circle, as federal agency employees, reporters who cover the White House, citizens and casual observers alike navigate through the President's flurry of "executive orders."
   What is an executive order?  An executive order is a "directive by the president to the officers and officials of the executive branch of government,"  says Philip Bobbitt, who is a Columbia law professor and a former Associate Counsel to President Jimmy Carter.  While the president can't order private citizens to specifically do something, they are still affected by executive orders insofar as their interactions with executive officials.  "They do have the effect of law," Bobbitt explained.
   Can an executive order be reversed?  Both the legislative and judicial branches have the power to reverse an executive order. 
    If the president issues an executive order in accordance with a law passed by the legislative branch and Congress disagrees, Congress can pass a bill clarifying the law.  However, the president then has the power of the veto; in which case Congress would have to override the veto with a two-thirds majority vote in both the House of Representatives and in the Senate.
   If, however, an executive order pertains to the president's independent constitutional responsibilities, then only the courts can reverse it.  Philip Bobbitt uses the example of the Emancipation Proclamation, an executive order issued by Abraham Lincoln in accordance with his power as commander-in-chief.  While Congress did not have the power to override that order, the courts could have declared it unconstitutional.
    More recently, the courts blocked President Barack Obama's 2014 executive order to shield millions of undocumented immigrants from deportation and allow them to work legally in the United States.  The 2016 Supreme Court decision was deadlocked at a vote of 4 each.  (Only eight justices voted as there was a seat left vacant by Justice Scalia's death earlier in the year; and Congress would not hear or even try to approve of Obama's appointment to fill Scalia's seat.)  The tie meant that a lower court's decision, that Obama likely exceeded his executive authority, stopped the plan of the executive order from being implemented.

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