Presidential powers and Constitutional limits

mehta-datalab-executiveorders1Hat tip for the chart to David Damico.

President Obama is accused by Republicans of exceeding his Constitutional authority by issuing an executive order to allow up to 5 million unauthorized immigrants who meet certain conditions to stay in this country.

An executive order is simply a directive by a President to federal departments or the armed forces to follow a policy.

With the increase in the size and scope of the federal government, executive orders become more and more necessary to make the government work.  But so does the need for checks and balances to prevent abuse of executive power.

The Constitutional authority to issue executive orders comes from provisions vesting the “executive power” of the U.S. government in the President, making the President commander-in-chief of the armed forces and ordering the President to make sure that the laws be faithfully executed.

The most far-reaching executive order in American history was the Emancipation Proclamation.   President Lincoln claimed power as commander-in-chief to order the confiscation of property of the enemy.

President Franklin D. Roosevelt issued more executive orders than any other President.  On the day he was inaugurated, he ordered the temporary closing of American banks.  Another executive order was to forbid American citizens to hoard gold coins or bullion.  FDR’s most infamous executive order was the internment of Japanese-American citizens during World War Two.

President Truman desegregated the armed forces by executive order.  President Eisenhower used the armed forces to enforce school desegregation.  President Kennedy desegregated public housing.

President Reagan forbid use of federal funds to advocate abortion.  President George W. Bush authorized the National Security Agency to eavesdrop on American citizens and residents.   All by executive order.

The Supreme Court has the power to overturn an executive order if the justices decide the President has exceeded his Constitutional authority.

This was done in 1952, when President Truman seized steel mills to prevent them being closed by a strike during the Korean Conflict, and again in 1995, when President Clinton forbid the federal government to do business with companies employing strikebreakers.

Most executive orders are for routine and uncontroversial matters.  Some of President Obama’s recent executive orders changed requirements for career jobs in the Bureau of Alcohol, Tobacco, Firearms and Explosives, authorized an investigation into a labor dispute between the Southeastern Pennsylvania Transportation Authority and the Brotherhood of Locomotive Engineers and tightened security on electronic payments to the government.

Did Obama exceed his Constitutional authority in his immigration executive order?  I agree with what the President is trying to do in this case, and I think there are things he has done (unrestricted drone warfare, prosecution of whistle-blowers) that are worse abuses of power.  I’m of two minds on this.


How Executive Orders Work by Dave Roos for HowStuffWorks.

Every President’s Executive Orders in One Chart by Dhrumil Mehta for FiveThirtyEight.  (Hat tip to David Damico).

Executive Actions on Immigration by the U.S. Department of Homeland Security.

List of United States federal executive orders on Wikipedia.

 I expanded the original version of this post for clarity.

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