Executive orders and the seperation of powers

Can any president at any time write an executive order to bypass the laws made by congress. If so, is there really such thing as seperation of powers in the United States?

cwb01 said:

Can any president at any time write an executive order to bypass the laws made by congress. If so, is there really such thing as seperation of powers in the United States?

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The President writing executive orders to bypass laws made by Congress is a function of separation of powers.

Presidents write executive orders for a variety of reasons. One reason is to direct executive agencies in specific ways when Congress writes legislation broadly.

But another reason is when the President feels that Congress has overreached it's own constitutional authority.

When the President signs a bill into law, he may also issue a signing statement that provides the executive branch's interpretation of the constitutionality of the law and how the President will implement the law, which he communicates to executive agencies via executive order.

And the President does this because Congress may commit unconstitutional acts as well.

When this happens, Congress can then sue the President in the Supreme Court. This happened when President Jimmy Carter rescinded the treaty that allowed the U.S. to control the Panama Canal Zone, which he did so he could turn it over to the government of Panama. Senator Barry Goldwater filed a lawsuit against President Carter, claiming that a President needed the consent of the Senate to rescind a treaty just as the Senate was required to confirm a treaty.

So the Supreme Court is used as the arbiter of the President and of Congress in regards to the constitutionally of their actions as per their implied power of judicial review.

samsmart said:

The President writing executive orders to bypass laws made by Congress is a function of separation of powers.

Presidents write executive orders for a variety of reasons. One reason is to direct executive agencies in specific ways when Congress writes legislation broadly.

But another reason is when the President feels that Congress has overreached it's own constitutional authority.

When the President signs a bill into law, he may also issue a signing statement that provides the executive branch's interpretation of the constitutionality of the law and how the President will implement the law, which he communicates to executive agencies via executive order.

And the President does this because Congress may commit unconstitutional acts as well.

When this happens, Congress can then sue the President in the Supreme Court. This happened when President Jimmy Carter rescinded the treaty that allowed the U.S. to control the Panama Canal Zone, which he did so he could turn it over to the government of Panama. Senator Barry Goldwater filed a lawsuit against President Carter, claiming that a President needed the consent of the Senate to rescind a treaty just as the Senate was required to confirm a treaty.

So the Supreme Court is used as the arbiter of the President and of Congress in regards to the constitutionally of their actions as per their implied power of judicial review.

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Thanks for the info. Recently the right has been up in arms saying Obama has abused executive orders and has gone against the constitution in doing so. Has he really abused the executive order? Also, if he has abused the executive order, has he done so more than other presidents in history?

cwb01 said:

Thanks for the info. Recently the right has been up in arms saying Obama has abused executive orders and has gone against the constitution in doing so. Has he really abused the executive order? Also, if he has abused the executive order, has he done so more than other presidents in history?

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Well, the issue is executive overreach. There's a very real fear of the office of the President being a kind of elected term-limited dictator.

and, historically, presidential systems tend to evolve into this.

This is because in presidential systems, while the legislature (in our case Congress) tends to be divided on partisan basis - that is to enact their powers they must compromise on their partisan ideology - the executive, who appoints his Cabinet with legislative confirmation, does not have to be bipartisan.

So even though both the House and the Senate are composed of both parties at all times, the President's Cabinet does not require such representation. In fact, it is the norm that the executive officials be all of one party.

This is different from the parliamentary system.

In that, parts of the legislature form the executive. But in multi-party parliamentary systems, coalitions of different parties must form to have a majority in the legislature as well as the executive. So there is multi-partisan at many times within the executive in order to form a coalition government.

So in parliamentary systems it is possible for the executive to be wholly representative of the people as well as the legislature.

So has President Obama really abused executive orders? Well, there's a few things to keep in mind.

For one, President Obama was still elected to be President, and so the argument is that the majority of the people have given an implicit permission to his governance as President, which includes his use of executive orders.

If President Obama has, indeed, abused his use of executive orders, there are processes that can be used to expel him from the office.

The House can vote to impeach President Obama for breaking constitutional law. Should the impeachment succeed, the Senate then tries him, which the Chief Justice oversees. The Senate may then vote to determine if he has broken the law, and convicts with a 2/3 majority vote.

If a member of Congress wants a ruling on the constitutionality of an executive order without resorting to impeachment, he could simply file a lawsuit with the Supreme Court.

So there are many avenues available to Congress to intercede on executive overreach.

However, most members of Congress don't pursue them. They want the President to have a lot of power. That way, the President bears the responsibility for the government rather than including Congress in it. Which means that members of Congress can continue getting paid campaign contributions to dole out government contracts and tax exemptions while leaving actual governing up to the President.

cwb01 said:

Thanks for the info. Recently the right has been up in arms saying Obama has abused executive orders and has gone against the constitution in doing so. Has he really abused the executive order? Also, if he has abused the executive order, has he done so more than other presidents in history?

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well many presidents have abused it.

executive orders were created to apply to the executive branch only.

EO'S cannot be used to create law, because only congress can create law.

samsmart said:

The President writing executive orders to bypass laws made by Congress is a function of separation of powers.

Presidents write executive orders for a variety of reasons. One reason is to direct executive agencies in specific ways when Congress writes legislation broadly.

But another reason is when the President feels that Congress has overreached it's own constitutional authority.

When the President signs a bill into law, he may also issue a signing statement that provides the executive branch's interpretation of the constitutionality of the law and how the President will implement the law, which he communicates to executive agencies via executive order.

And the President does this because Congress may commit unconstitutional acts as well.

When this happens, Congress can then sue the President in the Supreme Court. This happened when President Jimmy Carter rescinded the treaty that allowed the U.S. to control the Panama Canal Zone, which he did so he could turn it over to the government of Panama. Senator Barry Goldwater filed a lawsuit against President Carter, claiming that a President needed the consent of the Senate to rescind a treaty just as the Senate was required to confirm a treaty.

So the Supreme Court is used as the arbiter of the President and of Congress in regards to the constitutionally of their actions as per their implied power of judicial review.

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Very well done.

samsmart said:

the president writing executive orders to bypass laws made by congress is a function of separation of powers.

Presidents write executive orders for a variety of reasons. One reason is to direct executive agencies in specific ways when congress writes legislation broadly.

But another reason is when the president feels that congress has overreached it's own constitutional authority.

When the president signs a bill into law, he may also issue a signing statement that provides the executive branch's interpretation of the constitutionality of the law and how the president will implement the law, which he communicates to executive agencies via executive order.

And the president does this because congress may commit unconstitutional acts as well.

When this happens, congress can then sue the president in the supreme court. This happened when president jimmy carter rescinded the treaty that allowed the u.s. To control the panama canal zone, which he did so he could turn it over to the government of panama. Senator barry goldwater filed a lawsuit against president carter, claiming that a president needed the consent of the senate to rescind a treaty just as the senate was required to confirm a treaty.

So the supreme court is used as the arbiter of the president and of congress in regards to the constitutionally of their actions as per their implied power of judicial review.

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EO's cannot be used outside of the executive branch of office, and cannot be used to make laws.

The constitution is clear, only congress can make laws.

ernst barkmann said:

EO's cannot be used outside of the executive branch of office, and cannot be used to make laws.

The constitution is clear, only congress can make laws.

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In theory that is certainly how it should be, but in practice their weight can go much farther. Let's not forget that it was an executive order that cleared the way for Japanese-Americans to be put in internment camps.

Executive orders must comply with the enumerated powers of Article II.

Writing an EO that he can kill anybody anytime anywhere is usurpation. He does not have that power, whether he claims he does or not.

Nixon's statement that "if the Prez does it, it is legal" is not accurate.