THE HISTORY OF, AND CHALLENGES TO, PRESIDENTIAL LAWMAKING:
Why The Bush Administration's Use Of Executive Orders Is Nothing Novel

By JOHN DEAN

Friday, Dec. 21, 2001

Much to the chagrin of Congress, President George W. Bush is busy writing one law after another without involving the legislative branch. Complainants from Capitol Hill decry that the Founders only envisioned one lawmaking body in the federal system - the Congress. This is true. Yet after 200 years of governing, the business of lawmaking has been spread around.

Federal judges make law. Of course, they say they are only interpreting precedents, statutes or the Constitution. But that is a myth. In fact, Supreme Court Justices are ultimate lawmakers under our Constitution, for they can overturn the lawmaking of all others.

Throughout the decades, Congress has given away its lawmaking powers. It has authorized Executive departments and regulatory bodies like the Department of Transportation, the Federal Communications Commission, and the Environmental Protection Agency, to make laws. Additionally, Congress has fostered presidential lawmaking by acquiescence.

Presidents, however, are lawmakers by fiat. They simply do it. And rarely are their efforts called in question or checked. Presidents issue directives that have the status of laws as a concomitant of their executive authority. It is one of the tools by which they govern.

Historical Precedents For Presidential Lawmaking

Presidential directives typically are contained in either "proclamations" or "executive orders," but they can also be found in memoranda, orders and many other forms. In fact, the Congressional Research Service (CRS) has found no less than 24 different forms of presidential directives (for example, national security decision directives, presidential findings, regulations, study memoranda, letters on tariffs and trade agreements, and so on).

Presidential directives started with George Washington, and ever since, presidents have simply assumed they have the power to issue such orders, which are tantamount to laws. According to CRS, there were 143 formal Executive Orders issued by the presidents from Washington to James Buchanan. But the nature of these directives changed with the Civil War.

Abraham Lincoln used presidential directives to fight the Civil War. He called up 75,000 militia men to suppress secession by southern states; he ordered blockades of southern ports; he ordered the building of 19 warships; he enlarged the Army and Navy; and he created military tribunals - all without consent of Congress, although these actions and other actions were ratified by Congress after the fact.

Since 1935, Presidents have been required to publish their Executive Orders in the Federal Register. To date, in the more than ten months he has been in office, President Bush has issues 38 Executive Orders. Those that have drawn most attention, and about which I have previously written, relate to withholding Presidential papers and military tribunals.

Cato Institute Study on Executive Orders

In a study critical of the use of presidential directives, particularly President Bill Clinton's, the libertarian Cato Institute published a policy analysis entitled "Executive Orders and National Emergencies: How Presidents Have Come to 'Run the Country' by Usurping Legislative Power."

Of particular interest in this inquiry is a table (partially quoted below) which shows the historical use of presidential executive orders since the second year of the Lincoln Administration (1862):

Abraham Lincoln3   Calvin Coolidge1,253
Andrew Johnson5   Herbert Hoover1,004
Ulysses Grant15   Franklin Roosevelt3,723
Rutherford Hayes0   Harry Truman905
James Garfield0   Dwight Eisenhower452
Chester Arthur3   John Kennedy214
Grover Cleveland6   Lyndon Johnson324
Benjamin Harrison4   Richard Nixon346
Grover Cleveland71   Gerald Ford169
William McKinley51   James Carter320
Theodore Roosevelt1,006   Ronald Reagan381
William Taft698   George Bush166
Woodrow Wilson1,791   William Clinton304
Warren Harding484

As the table reflects, only two presidents made no use at all of executive orders: Hayes and Garfield. President Hayes, who recognized that "executive power is large because [it is] not defined in the Constitution," took the view that "conscientious" presidents had acted "within a limited range" under an "unwritten law of usage that has come to regulate an average [presidential] administration." Hayes warned that, "if a Napoleon ever became President, he could make the executive almost what he wished to make it."

As the compilation shows, the first president to take such a Napoleonic view was President Theodore Roosevelt who, when launching the progressive era of government, did so largely by executive order. In his Autobiography, Roosevelt wrote that in his presidency he insisted

... upon the theory that the executive power was limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by Congress under its constitutional powers. My view was that every executive officer ... was a steward of the people bound actively and affirmatively to do all he could for the people.... I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it.... Under this interpretation of executive power I did and caused to be done many things not previously done by the president and the heads of the departments. I did not usurp power, but I did greatly broaden the use of executive power.

The Cato Institute's study shows that the most aggressive use of Executive Orders has typically been during times of war: Lincoln during the Civil War, Wilson during WW I, Franklin Roosevelt during WW II, and Harry Truman during the Korean War. President George Bush, in the War on Terrorism, has been restrained so far in his use of Executive Orders, given the precedents.

Controlling and Checking the Use of Executive Orders

Public opinion is only a mild restraint, and no real control, on aggressive use of Executive Orders by a President. And Congress only infrequently acts to limit the President's authority, or express its disapproval of his actions in issuing a directive.

For example, in 1974 the Congress did pass a joint resolution calling for presidents to obtain its approval regarding certain exercises of the war powers. Yet Presidents Reagan, Bush and Clinton all ignored the War Powers Resolution, and issued Executive Orders that conflicted with it.

Periodically, proposals have been introduced in Congress to control the President's use of Executive Orders, or to provide "standing" (the legal right to sue) so that a President's directives can be challenged in Federal court. But Congress has failed to adopt any such control or check on the use of directives. Nor is it clear Congress could, in fact, so restrain the chief executive. Courts are reluctant to resolve such political questions, particularly the Supreme Court.

Only once has the Supreme Court found that a president exceeded his authority in issuing an executive order - when President Truman attempted to resolve a strike by taking over steel mills in Youngstown, Ohio. And only once has a lower federal court held a president's Executive Order improper, which occurred during the Clinton Administration. Both cases are instructive.

The Youngstown Case: The Court Versus A Truman Executive Order

In 1946, when President Truman seized several major bituminous coal mines, to enable his Secretary of the Interior to negotiate a contract with mineworkers, he claimed he was acting under the War Labor Disputes Act, and the U.S. Supreme Court agreed in U.S. v. United Mine Workers of America.

Truman's action was not unlike earlier actions of Franklin Roosevelt, who had used presidential directives to seize textile mills, refineries, railroads, and other enterprises facing strikes that could hurt the WW II war effort.

Later, in 1952, during the Korean conflict, Truman seized steel mills to avert a nation-wide strike of steel workers, which he believed would jeopardize national defense. He issued an executive order directing the Secretary of Commerce to seize and operate several steel mills.

Mill owners immediately sought to enjoin the order from going into effect. In Youngstown Sheet & Tube v. Sawyer, considered a landmark ruling, the Supreme Court held that Truman had no statutory or inherent Constitutional authority for his action. To the contrary, the President, according to the Court, had undertaken a legislative action properly reserved to Congress, and thus violated the separation of powers.

In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States....

In separate concurring opinions, both Justices Frankfurter and Douglas, quoted the timeless and often forgotten wisdom and words of Justice Brandeis (in Myers v. United States): "The doctrine of the 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 the governmental powers among three departments, to save the people from autocracy."

Clinton's Concession Broadened Authority To Challenge Executive Orders

When President Clinton sought to use an Executive Order to prohibit federal contracts from being awarded to companies that hired permanent replacements for striking employees, those affected filed a lawsuit to enjoin the Clinton Administration's enforcement of this directive. The U.S. Court of Appeals for the District of Columbia found that the President's order was contrary to the National Labor Relations Act, and therefore improper.

Equally important, this ruling dismissed the government's assertion that federal courts did not have authority to review the legality of the President's Executive Order. The Court stated that it is now well established "that review of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President's directive." Even if the Secretary of Labor was acting at the behest of the President, this "does not leave the courts without power to review the legality [of the action], for courts have power to compel subordinate executive officials to disobey illegal Presidential commands."

The Clinton Administration did not appeal this ruling. Thus, it remains law. And it means that today it is more inviting than ever for those who are adversely affected by an Executive Order to go to court.

Why the Courts Should Not Police Presidential Directives

In the end, it is not for the federal courts to police the Executive Branch, however. As Justice Frankfurter said in Youngstown, "A constitutional democracy like ours is perhaps the most difficult of man's social arrangements to manage successfully. Our scheme of society is more dependent than any other form of government on knowledge and wisdom and self-discipline for the achievement of its aims. For our democracy implies the reign of reason on the most extensive scale."

For that reason, Frankfurter took the position that many federal judges have taken regarding Executive versus Legislative Branch activities: "I shall not attempt to delineate what belongs to [the President] by virtue of his office beyond the power even of Congress to contract; what authority belongs to him until Congress acts; what kind of problems may be dealt with either by the Congress or by the President or by both."

Congress' Ability to Trump a Presidential Directive

There is only one institution with authority to control and check a president's use of Executive Orders. Montesquieu, whose influence on our Founders was great, wrote: "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates." This is why, in structuring our government, they separated these powers.

But only Congress can truly trump a presidential directive. Congress has oversight powers, and the authority to enact the needed laws. When Congress and the White House are controlled by the same political party, needless to say there have been few, if any, efforts to check and control a president's use of Executive Orders.

Most modern Presidents tend to think like Theodore Roosevelt, who viewed his powers -allowing him to provide for the American people - as endless, unless Congress or the Constitution expressly provided otherwise. Although, alternatively, some Presidents think like William Howard Taft, who followed Teddy Roosevelt into the Oval Office, and made the following judicious appraisal of presidential power (after he left office, but before he became Chief Justice):

The true view of the executive function is ... that the President can exercise no power which cannot be reasonably and fairly traced to some specific grant of power or justly implied or included within such express grant as necessary and proper to its exercise. Such specific grant must be either in the Constitution or in an act of Congress passed pursuant thereof. There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest.

It is too early, with only 38 Executive Orders issued, to know how President George W. Bush perceives his powers. The elections in 2004 will determine how free he will be in pursuing his vision of those powers.


John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.