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]