Welcome to Part Five of Trust and the Presidency!
In Part One, you learned that the framers of our Constitution had a lot of trust issues. Among these were whether the presidency could be trusted to serve the common good rather than a favored faction and whether the president could be trusted with enough power to deal with the problems of the day without tyrannizing the people. You learned the tried to overcome their trust issues by creating a presidency with constrained powers and autonomy that would be accountable to Congress. They also attempted to insulate the presidency from the politics of faction through the invention of the Electoral College.
In Part Two, you learned that, contrary to the framer’s intentions, the presidency was politicized when the state legislatures required their electors in the Electoral College to represent the popular vote in their states. In so doing, the presidency gained a power base and accountability to the voters in addition to accountability to Congress. This shift in power and accountability can sometimes motivate populist or partisan presidents to try to weaken constitutional constraints. In Part Three, you learned how the powers originally assigned to the presidency for war-making, treaty-making, and control over the federal bureaucracy were deepened. In Part Four, you learned how Congress delegated budgetary, regulatory, and emergency powers to the presidency.
In Part Five, you will learn about two important implied powers that affect how laws are made and enforced. As in the times of the framers, and as in Parts Three and Four, the issue is whether the presidency can be trusted with enough power to deal with the problems of the day without tyrannizing the people.
PART FIVE: IMPLIED POWERS
A. Introduction
1. Implied powers to refer to powers that are not enumerated in the Constitution. These powers appeared in practice because they are necessarily implied by Constitutional obligations, notably the Take Care Clause that requires the President to “take care that the laws be faithfully executed.” In this context, we review below two implied powers, to issue executive orders, and to decide which laws, rules, and regulations to enforce.
B. Executive Orders
2. Presidents can use executive orders to create laws or to modify laws, rules, and regulations. As an example of law creation, President Truman issued Executive Order 9981 in 1948 to desegregate the military. In 1965, President Johnson signed Executive Order 11246 to require equal opportunity for minorities in federal contractors’ recruitment, hiring, training, and other employment practices. Other examples of executive orders include the 1863 Emancipation Proclamation used to free enslaved people during the civil war and President Roosevelt’s order in 1942 to force the internment of Japanese citizens during World War Two. Executive orders have also been used to create federal agencies. The Department of Homeland Security is an example (Executive Order 13228).[1] Executive orders are also used to modify rules and regulations. These orders may directly specify changes in rules, or they may direct a department or agency to devise changes consistent with presidential policies. For example, the second Bush administration used Executive Order 13212 to create a task force to monitor and assist the agencies in their efforts to expedite their review of permits or similar actions, as necessary, to accelerate the completion of energy-related projects, increase energy production and conservation, and improve the transmission of energy.
There are many kinds of executive orders. Among these are executive agreements, executive proclamations, military orders, national security findings, secret national security directives, presidential determinations, and presidential memoranda.[2]
3. Executive orders are an implied power based on the Take Care Clause.[3] They carry the force of law only when they are grounded in an act of Congress or in the Constitution. This requirement was underlined by the Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer (1952).[4] In that case, President Truman had attempted, as a matter of national security, to take over the country’s steel mills while they were dealing with labor union strikes. The Supreme Court ruled the executive order was unconstitutional because it was not based on any existing laws or constitutional provisions. Executive orders are therefore built upon interpretations of existing laws and Constitutional clauses. Many of these interpretations come from the Office of General Counsel located in the Office of Management and Budget,[5] or from the Office of White House Counsel located within the White House staff.
4. The courts have been generous in how they assess the constitutionality of various executive orders. They have allowed for implied powers as well as specifically delegated or shared powers, and even allowed for Congressional support after the fact.[6] Relatively few executive orders have been struck down by the court system, even when poorly constructed. On the contrary, by referring to executive orders in judicial proceedings, the courts have helped establish them as legitimate.[7]
5. The Administrative Procedures Act does not apply to executive orders, but it can apply to agencies acting to implement executive orders.[8] The APA requires executive departments and agencies to hold public hearings for each new regulation and provide citizens with advance notice of those hearings to give us enough time to read and react. In 1992, the Supreme Court held in Franklin v. Massachusetts that a President’s actions are not subject to the APA.[9] In 2020, however, the court ruled that the Department of Homeland Security had not followed APA requirements when implementing the President’s immigration policy.[10]
6. Executive orders can be nullified by Congress but only with difficulty. Congress could adopt a law to overturn an executive order, but that law could be vetoed by the President. Congress could then seek to overturn the veto with two-thirds majority votes in the House and the Senate, as required by the Constitution. Historically, Congress has overridden only ten percent of all presidential vetoes.[11]
7. Executive orders may seem like an attractive option in the face of Congressional obstruction, but they come at a cost because they are easily reversed by new presidents. The fate of the Presidential Records Act of 1978 is an example of how presidents can modify laws. The 1978 law declared all records of former presidents as the property of the federal government, to be made public 12 years after they left office. When George W. Bush became president, he signed Executive Order 13233, restricting access to presidential records with military, diplomatic, national security, or other sensitive information. The order was later revoked by Barack Obama’s Executive Order 13489. The treatment of enemy combatants is another example. In November 2001, President George W. Bush signed an executive military order titled the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, which mandated the detention and trial of enemy combatants by military commissions, including at Guantanamo Bay. In January of 2009, President Barack Obama signed an executive order, calling for a review of all prisoners held in Guantanamo Bay with the goal of closing the prison within a year. The deadline was not met. In January 2018, President Trump signed his own executive order to keep the prison open indefinitely. For the 6,158 executive orders issued between 1946 and 2013, one quarter (25%) were revoked, and another 26 percent amended or superseded, often within five to ten years of being issued.[12] By contrast, only nine percent of 961 laws enacted by Congress between 1877 and 2012 were repealed. The difference in outcomes is natural: it is difficult to convince enough members of both houses of Congress to support a repeal rather than work on other legislation, whereas a determined president can act at any time.
8. There may be an additional cost in terms of public approval. There is evidence that presidential approval ratings are negatively affected when presidents use executive orders too often.[13] Many Americans, it seems, become nervous when presidents act unilaterally. This evidence may help explain part of the observed drop in trust for the presidency. The increased use of executive orders to bypass a divided Congress will only make the trend worse.
Application: How do you assess the pros and cons of working with a divided Congress to achieve important legislation versus using executive orders to bypass Congress to get the job done?
C. Enforcement Discretion
9. The Supreme Court has provided the Executive Branch with significant discretion in deciding which laws and regulations should be enforced and which should not.[14] The Supreme Court generally resists reviewing Executive Branch enforcement decisions. This is because the Appellate Courts and the Supreme Court have interpreted the Take Care Clause as ensuring presidential control over the enforcement of federal law. Decisions not to enforce a law or regulation are subject to agency discretion and are not subject to judicial review under the Administrative Procedure Act. In Heckler v. Chaney (1985), the Supreme Court ruled that an “agency’s decision not to take enforcement action should be presumed immune from judicial review.”
10. Congress seems to have conceded Executive Branch discretion. For example, Congress explicitly accepted executive discretion in the realm of law enforcement when it enacted a 2002 law requiring the Justice Department to notify Congress of all laws it would not enforce.[15]
11. Congress can narrow the Executive Branch room for maneuver. In Heckler v. Chaney, the Court explained that agency discretion in non-enforcement decisions could be overcome proactively if substantive law provided guidelines for the agency to follow in exercising its enforcement powers, or reactively if an agency has “consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.”
12. Enforcement discretion can create worries about partisanship and separation of powers.[16] Is the lack of enforcement of some law or regulation due to a genuine lack of capacity, or is it a maneuver to evade Congressional intent? The fight over immigration policy provides an example. The Obama administration’s 2014 decision to defer the deportation of undocumented children and their parents was challenged as an attempt to rewrite immigration law. This dispute led to a series of court cases. In the end, the Court of Appeals for the Fifth Circuit Court ruled in 2015 that the administration’s enforcement policy set forth a new substantive rule rather than merely a shift in enforcement priorities. As a new substantive rule, the change needed to comply with the Administrative Procedure Act’s notice-and-comment requirements.
13. The use of adversarial “signing statements” exacerbates worries about the separation of powers.[17] When presidents sign legislation into law, they often attach a signing statement as a way to associate their own opinions with the new law. These statements are often simple explanations of why a president supported Congress in enacting a law. Since the Reagan administration, however, signing statements have also been used to indicate presidential opinions on preferred interpretations of some laws, preferences in how some laws should be selectively implemented, or concerns over the constitutionality of selected portions of some laws. Although signing statements, by themselves, do not carry the force of law, presidential administrations appear to expect they might eventually enter into the legal record – potentially establishing eventual unilateral executive discretion to depart from the law. Thus far, however, the Courts have not referenced any signing statements in any of their decisions.
Congratulations! You have completed Part Five of the series on Trust and the Presidency.
You have learned that the Take Care Clause of the Constitution is the foundation for two implied presidential powers. One of these is the power to issue executive orders to make laws or modify laws, rules, and regulations. The other is the power to decide which laws, rules, and regulations to enforce.
Executive orders are an implied power based on the “Take Care” clause. They carry the force of law only when they are grounded in an act of Congress or in the Constitution. The courts have been generous, however, in how they assess the constitutionality of various executive orders. They have allowed for implied powers as well as specifically delegated or shared powers, and even allowed for Congressional support after the fact. Relatively few executive orders have been struck down by the court system, even when poorly constructed. Executive orders may seem like an attractive option in the face of Congressional obstruction, but they come at a cost because they are easily reversed by new presidents. For this reason, some executive orders have very short life-spans. There is evidence that presidential approval ratings are negatively affected by using executive orders too often. There are some checks on the use of executive orders. The courts can step in when an executive order is not well-grounded in the Constitution or appropriate laws, as in the Youngstown Sheet & Tube Co. case. Congress can nullify executive orders, although only with difficulty. Citizens can have an impact on executive orders through the review and comment requirements of the Administrative Procedures Act. The APA does not apply to executive orders themselves, but it can apply to agencies acting to implement executive orders: failure to follow APA requirements properly has tripped up at least one administration.
You also learned that the Supreme Court provided the Executive Branch with significant discretion in deciding which laws and regulations should be enforced and which should not. Congress seems to have conceded this authority. Enforcement discretion can create worries about partisanship and separation of powers. The use of adversarial “signing statements” exacerbates these worries. In response, the courts have indicated Congress can narrow the Executive Branch room for maneuver. In Heckler v. Chaney, the Court explained that agency discretion in non-enforcement decisions could be overcome proactively if substantive law provided guidelines for federal agencies to follow in exercising their enforcement powers, or reactively if an agency has “’consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.”
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© Center for Free, Fair, and Accountable Democracy
July 2020
This material is to be used only for civic education.
It may be copied and distributed only for non-profit, non-partisan, educational purposes and only with proper credit to the
Center for Free, Fair, and Accountable Democracy.
Written by Douglas Addison for the
Center for Free, Fair, and Accountable Democracy.
Principle Reviewers:
Jay Barth,
M.E. and Ima Graves Peace Distinguished Professor of Politics, Emeritus; Hendrix College
Matthew Crenson
Professor Emeritus and Academy Professor,
John Hopkins University
Benjamin Ginsberg,
David Bernstein Professor of Political Science,
Johns Hopkins University
Internal Reviewers:
Mark Nelson, Director
Eric Palladini, Director
Grayson Lewis, Advisory Board
Mark Molli, Advisory Board
CFFAD is a non-profit organization providing non-partisan civic education.
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End Notes
[1] Between 1946 and 1995, 215 federal agencies were created by Executive Branch orders, compared to 180 created by legislation. See Howell and Lewis (2017). Agencies by Presidential Design.
[2] Crenson & Ginsberg (2008), pp. 194-195.
[3] See https://www.history.com/topics/us-government/executive-order
[4] See Youngstown Sheet & Tube Co. et al. v. Sawyer. https://www.law.cornell.edu/supremecourt/text/343/579
[5] Under Executive Order 11030, as amended, OMB substantively reviews and clears all draft Presidential Executive Orders and Memoranda to Agency Heads prior to their issuance. The OMB General Counsel obtains “form and legality” approval of draft executive orders from the Department of Justice, and seeks legal authority approval from the Department of Justice for Presidential memoranda as well. Draft executive orders and Presidential memoranda are submitted for signature to the President by the Director of OMB and the General Counsel of OMB.
[6] Crenson & Ginsberg (2008), p. 196.
[7] Crenson & Ginsberg (2008), p. 199.
[8] Congressional Research Service (2018). Can a President Amend Regulations by Executive Order?
[9] See https://www.oyez.org/cases/1991/91-1502
[10] See https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf
[11] See https://www.senate.gov/reference/glossary_term/override_of_a_veto.htm
[12] Thrower (2017). To Revoke or Not Revoke? The Political Determinants of Executive Order Longevity.
[13] Reeves and Rogowski (2018). The Public Cost of Unilateral Action.
[14] Congressional Research Service (2014). The Take Care Clause and Executive Discretion in the Enforcement of Law.
[15] Crenson & Ginsberg (2008), p. 204-205. See also 28 U.S. Code § 530D. Report on enforcement of laws. https://www.law.cornell.edu/uscode/text/28/530D
[16] Congressional Research Service, 2014, pp. 20-21.
[17] Congressional Research Service (2012). Presidential Signing Statements: Constitutional and Institutional Implications.