Time to answer another question from the website. This time Wayne asks me to cover Executive Orders, so here we go.

To understand Executive Orders we have to go back to the beginning. No, not to our first president George Washington, but all the way back to the Constitution itself.

The executive Power shall be vested in a President of the United States of America.

U.S. Constitution, Article II, Section 1

The Constitution vests all the executive power of the federal government in one person, the President. The legislative power is vested in a group, Congress, and judicial power in the supreme and inferior courts, but the executive power is vested in just one person. Our Founding Fathers didn’t expect one man to do everything expected of the President. So they gave him the power to nominate and appoint officers of the central government.

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law

U.S. Constitution, Article II, Section 2, Clause 2

Now if the power is vested in the President, but he is allowed to appoint officers for positions in the executive branch, how does he tell them what to do? Remember, every person working in the executive branch does so in the name and under the authority of the President. Sure, he could just tell them what to do, but if you were an officer of the government, would you trust the President not to change his mind and hang you out to dry if something went wrong? No, you’re going to want policies and directives to be in writing and published publicly. Today, we call those Executive Orders.

Every President since George Washington has issued Executive Orders. Well, except for William Henry Harrison, who died after just one month in office. George Washington’s first order was for the heads of the executive departments to submit reports about their operations, exercising his authority under Article II, Section 2, Clause 1:

[The President] may require the Opinion, in writing, of the principal Officer in each of the executive Departments

U.S. Constitution, Article II, Section 2, Clause 2

So an Executive Order is simply a formalized way of the President telling those in the executive agencies what to do. Think of them like a CEO issuing a memo to his staff. That means there are three very important things to remember about Executive Orders.

First, Executive Orders are not law. People act like the President can create law with “a pen and a phone”, but that’s not true. A person cannot (legally) be arrested, charged, or convicted of violating an Executive Order. The worst that can happen to a person who violates an Executive Order, if we bother following the law, is they get fired.

Second, Executive Orders are not permanent. Since they are only the expression of a President’s policy to the executive branch, they can be changed or revoked at any time and for any reason. Contrary to what the federal judiciary has done lately, the President doesn’t need a reason or permission to revoke a previous Executive Order. In fact, other than issuing an opinion in a case involving an Executive Order, the courts have no authority over Executive Orders at all.

And lastly, since Executive Orders are not law, they are bound to the laws of the land, including the Constitution. If a President issues an Executive Order to violate the law, it should be treated as null and void. If an Executive Order violates the supreme law of the land, the U.S. Constitution, then it is definitely null and void. This means that Congress, through their legislative power, can restrict the scope and power of Executive Orders in areas where they have authority, like how the money is spent or rules for the military.

Conclusion

So, Executive Orders are nothing more than memos from the chief executive to his subordinates. Like any other memo, they are bound by the law and should be compared to it before being implemented.

But if Executive Orders have so little authority, why do they get so much attention nowadays? Because we stopped following the supreme law of the land decades ago. Congress has illegally delegated much of their lawmaking authority to the executive branch. This means that regulations, which should have been passed through legislation, can be promulgated based on an Executive Order. Look at the Affordable Care Act. The Secretary of HHS is told they shall or can establish regulations over 300 times in this one piece of legislation. And since the Secretary of HHS works for the President, he can issue an Executive Order directing them on the setting of those regulations. And before you think I’m picking on a single political party, the U.S. Patriot Act grants power to different executive agency heads almost 200 times.

So the root of the problem with Executive Orders lies not with the President, but with the American people. We have hired representatives, men and women who wield our power in our name, and we have allowed them to accumulate power in the hands of one person, the President. Then they act shocked (Shocked, I say!), when that person exercises that power.

If we want to get Executive Orders under control we must start by reigning in our Congress. Until we require them to do their jobs to get re-elected they will continue to pass the buck to an evermore dictatorial executive branch while patting themselves on the back claiming they have done something. What they have done is sell the American people into serfdom and servitude, and we should reward them properly: With a pink-slip.