Executive Actions and the People

What constitutes an executive action? Is the current administration abusing the powers; what about the past administration? Do voters have any recourse if the president oversteps his authority?

WHAT ARE EXECUTIVE ACTIONS?

Presidents have several important tools through which they can take executive action. Let’s take a look at the top three.

#1 Executive Orders

Executive orders are directives from the President that manage operations of the federal government – often by directing federal agencies on how to implement the law.

The constitutional basis for an executive order is found in Article II where the President “shall take Care that the Laws be faithfully executed.”

Though they often have the same effect as federal law, an executive order is not law. Congress can pass laws to override executive orders, and executive orders can be revoked by the next President with the stroke of a pen.

Executive orders have been used since George Washington. They are generally first announced by the White House press office but are kept and published in the Federal Register and in the National Archives and Records Administration.

Executive orders have been used for such diverse purposes as: to respond to national crises like the Iran hostage situation, for civil service and contract agreements, and for restricting entry into the United States.

#2 Presidential Memos

Presidential memoranda are documents issued by the president to manage the federal government. They are very similar to executive orders but do not have to include a justification of presidential authority.

Government offices are not required to track and publish memoranda. They are therefore not contained in the Federal Register and are sometimes difficult to trace. In the hierarchy of legal precedence, they are third in line after proclamations and executive orders. Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA) is one of the most notable – and controversial – presidential memoranda.

#3 Presidential Proclamations

Presidential proclamations are announcements of policy from the President. Though some may be honorary or ceremonial, they do carry the weight of law if they fall within the scope of presidential authority.

One of our nation’s most dearly held traditions came through Presidential proclamation -- the declaration of a National Day of Thanksgiving, which was issued on October 3, 1789.

In 1863, the proclamation was anything but traditional as Lincoln issued the Emancipation Proclamation freeing three million slaves held in Confederate territory.

The list of proclamations is kept in the Federal Register.

IS THE CURRENT ADMINISTRATION ABUSING POWER?

As the American presidency has progressed, so has the use of executives actions. Their use seems to be becoming more politically driven and used to push through each side’s most important policy items. Thus, the political party not in power tends to view the party in power as having abused the system.

Possibly a better way to assess the actions is to look at each action on its own merit and decide whether it falls within the framework of what is illegal or improper. For instance, according to The Heritage Foundation, “conservative scholars argue that Democrats Clinton and Obama routinely overstepped their authority to issue such directives in arenas where Congress had not acted.”

In Panama Refining Co. v. Ryan, the Supreme Court struck down Roosevelt’s executive orders regulating the transportation of petroleum.

We can certainly look back and see that of Franklin Roosevelt’s 3,721 executive orders, the “court of history,” does not look fondly on the internment of Japanese Americans during World War II.

HOW ARE THE PEOPLE PROTECTED FROM PRESIDENTIAL OVERREACH?

Recourse #1: Congress

As mentioned above, executive actions are not automatically law. Only Congress can pass legislation – and only YOU can elect them.

Any actions taken by a President can be overwritten by Congress. The vote must be veto-proof (a two-thirds vote rather than a simple majority), but it’s not as uncommon as one might think. Just since the turn of the century, Congress has overridden: four of George W. Bush’s vetoes, one of Barack Obama’s, and one of Donald’s Trump’s.

Another action not mentioned as often has to do with the purse strings. An action could be effectively thwarted if Congress were to simply deny necessary funding to carry out the action.

The people do have the power, we just must wield it effectively.

Recourse #2: The Courts

The second way to affect executive actions is through the courts. The decisions can go all the way to the Supreme Court but often begin in federal District Court – in which case the judge may have been appointed by a prior administration.

Temporary restraining orders (TRO) are also often used, and according to the American Bar Association, one of the criteria that must be met for a judge to issue the order is “public interest favors granting the TRO.”

Recourse #3: State Attorneys General

Finally, state attorneys general have become a line of defense against executive actions. As the top legal officers of their state or territory, they act as the “People’s Lawyer” for the citizens of the state.

In the 2007 case of Massachusetts v. E.P.A. (59 U.S. 497, 519-21), states were allowed “special solicitude” when suing the federal government. Since that time, attorneys general have brought more and more lawsuits against Presidential actions – perhaps most famously against Obamacare. Successful actions were brought against Obama’s Clean Power Plan, Clean Water Rule, and immigration and deportation policies. Attorneys general also played the same role to try to counter the Biden administration’s actions on climate change, health care, immigration, and spending. (Source: https://www.jdsupra.com/legalnews/state-watchdogs-as-biden-takes-office-7149235/)

Is your state attorney general on the ballot this year?

Far fewer people generally vote in the lesser-known statewide races than for President or even for state Governor. These seats are critical to serving as a stop-gap measure to executive overreach.

Remember, all good government starts at the ballot box – and can end there, too.

Our founding fathers were given divine wisdom to understand and institute checks and balances throughout the United States. Elections and appointments within all branches of the government have direct impact on our lives, and we must remain involved and remember the power that is in our hands.