Legal Issues In the News

Presidential Executive Orders (ReBroadcast)

Jennifer Pahre.

Jennifer Pahre is the director of undergraduate studies for the University of Illinois College of Law. University of Illinois

Since the time of George Washington, presidents of the United States of America have issued orders telling federal governmental agencies how to do their work.  The Constitution does not explicitly permit Executive Orders, but it does require the president to “take care that the laws be faithfully executed.” 

Certainly an executive order must be supported by some type of Constitutional grant of authority, or by a proper delegation of power by Congress.  For example, President Trump’s Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” relies upon the Immigration and Nationality Act.

Early executive orders did not get much attention.  Until the Department of State started to number them in 1907, they were usually unannounced, and viewed only by the agencies for which they were prepared. They were also off the radar because early presidents did not issue very many.  George Washington issued eight. Abraham Lincoln issued 48, including the 1893 Emancipation Proclamation, which declared the freedom of three million enslaved people living in the south. 

Critics of executive orders argue that they permit sweeping policy changes, without proper Congressional vetting and approval. Laws are hard to pass, but executive orders only require a Presidential signature. However, they are not immune from challenge: both the legislative and judicial branch can overturn them. Congress can void an executive order by passing invalidating legislation, or by refusing to provide the funding needed to support the order. Of course, the President then may veto the invalidating legislation, and a 2/3 majority in both Senate and House is needed for an override. 

It is easier, and faster, for the judiciary to act.  A court can overrule an executive order by finding that it overreaches Presidential authority, or violates a Constitutional right.  A court can also stay enforcement of part or all of an executive order, pending a final determination of its constitutionality, as did judges in response to President Trump’s “Foreign Entry” order.

While many Executive Orders have been controversial, President Roosevelt’s Order 9066 may well have been the most notorious. It provided military authority to remove Japanese and German Americans from certain regions of the country, paving the way for Japanese-Americans to be sent to internment camps during the Second World War. Fred Korematsu, an American citizen, challenged Executive Order 9066, arguing that it violated the due process clause of the Fifth Amendment. A majority of the Supreme Court ruled that the Executive Order was valid, as the need to protect against Japanese espionage during wartime outweighed Korematsu’s individual rights.

It took many years, but subsequent administrations apologized for the Japanese Internment. President Reagan signed the Civil Liberties Act of 1988, which ordered some monetary redress to surviving detainees. President George H. W. Bush signed an Amendment to the Act, which appropriated additional money for redress payments. 

A stated goal of the United States Constitution is to “establish justice.” The words “Equal Justice Under Law” are carved above the entrance to the Supreme Court. Chief Justice John Marshall once explained: “The very essence of civil liberty consists of the right of every individual to claim the protection of the laws… One of the first duties of government is to afford that protection.”

Accordingly, the government must not only protect us from hostile threats. The government must also keep secure the right to justice, even when threatened by governmental action.