NCPA - National Center for Policy Analysis

Executive Orders, Or Rule By Decree

July 31, 2000

Presidential lawmaking by executive order has grown with the modern presidency. In principle, presidents are not supposed to legislate, but the executive power necessitates some degree of de facto lawmaking.

But clearly the power is not unlimited.

  • When Harry Truman seized the steel industry in order to head off a threatened strike that would have hindered prosecution of the Korean War, the Supreme Court ruled Truman's executive order was illegal.
  • More recently, a federal district court struck down Bill Clinton's executive order regarding permanent striker replacements, a decision the administration chose not to appeal.

There has been a trend in recent years for presidents to be increasingly vague about the legal basis for their executive orders. The lack of specific statutory authority makes it harder for Congress and the courts to determine the legal basis for presidential actions. Also, claims of constitutional authority are harder to litigate, since they almost necessarily require a Supreme Court review. By contrast, claims of power based on specific statutes are more easily reviewed by lower courts.

Bill Clinton, even more so than Richard Nixon, has stretched the power of executive orders to the limit, especially since the 1994 Republican takeover of Congress.

Another problem with executive orders is that the courts have ruled that it is mainly Congress's responsibility to protect its own turf. If Congress acquiesces in a presidential usurpation of power, the courts are inclined to let such actions stand.

Lately, Congress has awakened to the problem. Sen. Mike Crapo (R-Idaho) has introduced S. 1795 to curb presidential lawmaking. It would require presidents to cite specific constitutional or statutory authority when issuing executive orders, and provide for expedited judicial review. While this is not likely to end presidential usurpation of congressional power, it is a good start.

Source: Bruce Bartlett, senior fellow, National Center for Policy Analysis, July 31, 2000.


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