“While the President’s ability to use executive orders as a means of implementing presidential power has been established as a matter of law and practice, it is equally well established that the substance of an executive order, including any requirements or prohibitions, may have the force and effect of law only if the presidential action is based on power vested in the President by the U.S. Constitution or delegated to the President by Congress.” This quotation is from the Congressional Research Service’s 2014 report entitled ”Executive Orders: Issuance, Modification and Revocation.” The report discusses the nature of executive orders “with a focus on the scope of presidential authority to execute such instruments, as well as judicial and congressional responses to their issuance.”
In 1952, President Harry S. Truman issued an executive order that was later determined to be unconstitutional by the U.S. Supreme Court. “The Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer established the framework for analyzing whether the President’s issuance of an executive order is a valid presidential action.”
President William Jefferson Clinton was thought to have made expansive use of presidential Executive Orders. A number of articles written during Clinton’s second term in office shine a light on the practice of issuing Executive Orders:
William J. Olson and Alan Woll, Policy Analysis, “Executive Orders and National Emergencies: How Presidents Have Come to ‘Run the Country’ by Usurping Legislative Power”, Cato Institute (October 28, 1999).
Tara L. Branum, 28 Journal of Legislation 1 (2002), “President or King – The Use and Abuse of Executive Orders in Modern-Day America.”
John A. Sterling, 31 U. West.L.A. L. Rev. 99 (2000), “Above the Law: Evolution of Executive Orders”.
An earlier blog post on Massachusetts Law Updates will help you with “Finding Presidential Executive Orders.”
A blog post to follow will use President Trump’s January 27, 2017 Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States” as an example of how to consider the status of an order that was issued, modified and revoked.
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