Executive Orders

 

-        Uses of EOs

o     create agencies (EPA, Peace Corps, Office of homeland security)

§       must use discretionary funds

o     pre-empt action by Congress

§       e.g. EPA, homeland security

o     change rules pursuant to legislation  

§       e.g., emissions levels

o     launch new initiatives

§       e.g., affirmative action hiring, faith-based services

 

-        When EOs are used

o     more common when congressional majorities are small and internally divided

o     gridlock in Congress encourages use of EO (Howell, 2005)

 

-        Limits on executive use of EU

o     Congress can reverse them

o     Future presidents can reverse them

o     Cannot be unconstitutional

§       Youngstown decision

o     presidential authority depends on relationship with Congress

o     acting with Congress > acting alone > acting against Congress


Foreign Policy, War and the Prerogative Power

 

-        Does the Constitution distinguish presidential authority in foreign policy v. domestic policy?

o     Courts have essentially granted president prerogative power in this area

o     Courts will not decide whether national security is threatened as a matter of fact

o     Issue is whether it is a foreign or domestic matter:

‘Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.’ [1]


 

-         Danger that foreign policy prerogative is exercised for domestic purposes

o      Nixon administration conducted un-warranted wiretaps under argument that it was a prerogative of the president on “domestic security” matters

o      USSC rejected the argument

o      Left open the question of whether it would apply if a foreign actor was involved:

“We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents”[2]

 

 

 



[1] Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952)

 

[2] UNITED STATES v. UNITED STATES DISTRICT COURT, 407 U.S. 297 (1972)