Charged by President Obama with forming a task force to examine possible solutions to senseless shootings as we saw at Sandy Hook Elementary in Connecticut last month, Vice President Joe Biden mentioned one tool available to the president is the Executive Order (EO). It is a viable tool for a president to specify how established constitutional precedent or statute are being enforced, but it cannot be used to create law. If the president uses the EO to limit the 2nd Amendment, or to raise the debt limit, as has also been suggested, he would clearly be acting unlawfully.
There is only the most tenuous support for the use of the EO in the Constitution. Article II, Section, Clause 5 of the U.S. Constitution instructs that the president, as head of the Executive Branch of America’s tripartite government (executive, legislative, and judicial) “take Care that the Laws be faithfully executed.”
And for the most part, that is how the over 13,000 Executive Orders have been used over the past 240 years. Presidents have issued them to clarify or facilitate executive branch employees and agencies in implementing or enforcing laws in the Federal Register, passed by Congress. In our constitutional republic, laws are made by the legislative branch, and either signed into law by the president, or the president’s veto overridden by the legislative branch. But laws are made by the legislative, not the executive branch. The executive branch’s responsibility is to ensure that the laws created by legislative act are enforced, or executed, if you will.
These constitutional restraints on executive power are all that prevent our republic from turning into a despotic, totalitarian state. The executive branch has grown so much in power over the past 100 years especially, that it would not take much effort on the part of an unprincipled power-monger to literally usurp power reserved to the legislative and judicial branches by the Constitution, and act in totalitarian fashion by declaring laws and edicts from the Oval Office.
That’s why many across the nation took note last year when Obama brazenly declared, “If congress doesn’t act, I will.” What that signaled to the nation is that Obama considered his power to not be limited by constitutional constraints, and that he could simply change or enact law by declaration, Executive Order, or fiat.
The use of the EO is only legal and binding if it is based on existing statute or an Act of Congress which gives the president the powers to do as he intends. This was established judicially by the landmark 1952 Supreme Court ruling of Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579. By executive order 10340, President Harry Truman declared that all steel mills in the country were to be placed under federal government control. The Supreme Court ruled, however, that the EO was invalid since Truman was essentially creating, or making law, as opposed to clarifying the executive branch enforcement of a law established by congress or the Constitution.
John Yoo, a law professor at Berkeley, said in a research piece last year, “It’s the duty of the president. He must always uphold the law.” He further indicated that the only exceptions in doing so are if laws are unconstitutional or if prosecuting them can be reasonably deemed not viable.
Yoo’s comments were made following Obama’s Executive Directive to the Department of Homeland Security, that essentially granted amnesty to certain illegal aliens. Yoo, and co-author Robert Delahunty of the University of St. Thomas, argued that Obama created new law, by declaring that his DHS was not going to enforce laws enacted by Congress.
Obama displayed the same contempt for constitutional constraints on his power when he declared he would not enforce the Defense of Marriage Act.
This is precisely why many are concerned with yet another Obama term, where constitutional and legislative limitations on his power will likely be ignored even more blatantly. When the president of a country arbitrarily chooses which laws to enforce and which not to, and assumes or usurps powers of the states or other branches of government to which he has no lawful for legal claim, he is no longer functioning as a president for the people, but as a dictator of his own will.
On January 21, for the second time in four years, Obama will place his left hand on the Bible, raise his right arm to the square, and promise before the nation and the world that he will, to the best of his ability, “preserve, protect and defend the Constitution of the United States.”
If, after making that promise, the president willfully and intentionally breaks his oath to support the Constitution, by either imposing new restrictions on the 2nd Amendment, or to increase the debt limit, his actions will be tantamount to newlyweds immediately breaking their vows through infidelity. A president that acts outside of the law is, by definition, a criminal, and such unilateral usurpation of non-existent executive powers should legally be considered grounds for impeachment.
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