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Photo credit: Dan Jacobs (Creative Commons)

Charged by President Obama with forming a task force to examine possible solutions to senseless shootings as we saw at Sandy Hook Elementary in Connecticut last month, Vice President Joe Biden mentioned one tool available to the president is the Executive Order (EO). It is a viable tool for a president to specify how established constitutional precedent or statutes will be enforced, but it cannot be used to create law. If the president uses the EO to limit the Second Amendment, or to raise the debt limit, as has also been suggested, he would clearly be acting unlawfully.


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There is only the most tenuous support for the use of the EO in the Constitution. Article II, Section, Clause 5 of the U.S. Constitution instructs that the president, as head of the Executive Branch of America’s tripartite government (executive, legislative, and judicial) “take Care that the Laws be faithfully executed.”

And for the most part, that is how the over 13,000 Executive Orders have been used over the past 240 years. Presidents have issued them, and Administrative Orders, to clarify or facilitate executive branch employees and agencies in implementing or enforcing laws in the Federal Register. In our constitutional republic, laws are made by the legislative branch, not the executive branch. The executive branch’s responsibility is to ensure that the laws created by legislative act are enforced, or executed.

Respect for the rule of law, the Constitution, and separation of powers are all that prevent our republic from turning into a despotic, totalitarian state. The executive branch has grown so much in power over the past 100 years especially, that it would not take much effort on the part of an unprincipled power-monger to literally usurp power reserved to the legislative and judicial branches, and act in totalitarian fashion by declaring laws and edicts from the Oval Office, if left unchecked.

That’s why many across the nation were alarmed last year when Obama brazenly declared, “If congress doesn’t act, I will.” What that signaled to the nation is that Obama considered his power to not be limited by constitutional or legal constraints, and that he could simply change or enact law by declaration, Executive Order, or fiat.


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The limits of presidential declarations, like the EO, were clarified judicially by the landmark 1952 Supreme Court ruling of Youngstown Sheet & Tube Co. v. Sawyer. By Executive Order 10340, President Harry Truman declared that all steel mills in the country were to be placed under federal government control. The Supreme Court ruled, however, that the EO was invalid since Truman was essentially creating, or making law, as opposed to clarifying the executive branch enforcement of an existing law.

John Yoo, a law professor at Berkeley, said in a research piece last year, “It’s the duty of the President. He must always uphold the law.” He further indicated that the only exceptions in doing so are if laws are unconstitutional or if prosecuting them can be reasonably deemed not viable.

Yoo’s comments were made following Obama’s Executive Directive to the Department of Homeland Security, that essentially granted amnesty to certain illegal aliens. Yoo, and co-author Robert Delahunty of the University of St. Thomas, argued that Obama created new law, by declaring that his DHS was not going to enforce legal statute.

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The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.


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