Ninety-six to ninety-nine percent of executive orders and proclamations are going to be non-controversial.
One really can't, you know, say categorically "Executive orders are good," or "Executive orders
are bad," or "They tend to be legal," or "They tend not."
You just, you have to look at the facts.
A lot of the times the claims against executive orders are really claims against the presidency
and the president's powers in general.
Just the order happens to be the way they're carried out.
What really matters is the number, and it may only be a handful, it may only be five
that are illegal.
That's what defines whether a president is abusing his or her authority.
They're nothing scary.
They're just the orders that presidents from Washington on have just sent to his subordinates
and the rest of the executive branch about how to allocate resources, how to interpret
their authorities, how to carry out the wishes of Congress.
The president may act pursuant to authority that has granted him by the Constitution and
granted to him by the Congress.
The very first president, President Washington, issued presidential orders, uh, from his very
first years in office.
So, it's something we've always had in our system.
Oftentimes, executive orders, uh, are- are issued during wartime.
And the Civil War was no exception.
And by virtue of the power and for the purpose aforesaid, I do order and declare that all
persons held as slaves within said designated states and parts of states are henceforward
and forever shall be free.
So I think the Emancipation Proclamation is probably the most famous and most important
presidential order ever given.
Uh, the Emancipation Proclamation is taken during the middle of the Civil War.
It's issued in early 1863, and President Lincoln says the slaves who are held in Confederate
states are free.
He first announced in the summer of 1862 to his cabinet that he would issue a preliminary
Emancipation Proclamation after a Union victory.
He didn't want to make it look like it was a, an act of desperation.
So after the Battle of Antietam in September 22, 1862, he issued the preliminary Emancipation
Proclamation.
Uh, President Lincoln essentially warned rebelling states, uh, and rebelling areas that if they
did not within, I believe he said 100 days, uh, cease to be rebelling against the Union,
uh, that their slaves would be deemed emancipated.
And then there was the final Emancipation Proclamation in 1863 where he essentially
made good on those promises.
Lincoln had authority primarily as commander-in-chief to issue the Emancipation Proclamation.
He did not try to free the slaves in the areas where there was no combat or in the areas
that were still loyal.
But he also cited statutory authority. Specifically, he cited Congress' Confiscation
Acts that they had passed in, I believe it was 1861 and 1862.
And so in the preliminary proclamation, uh, President Lincoln referred to that and his
constitutional authority.
In the 1863 final proclamation, uh, he only made reference to his constitutional authority,
specifically his authority as commander-in-chief to execute the war effort.
Commander-in-chief normally can seize property of an enemy if it's being used to wage war
against them.
Was that, uh, the power that, uh, Lincoln had?
Well, it was never litigated because the Thirteenth Amendment two years later was ratified.
I think the Emancipation Proclamation set a very important precedent which was that really
is up to the president to make the strategic and tactical decisions about how to win a
war once it has begun.
The precedent that the Emancipation Proclamation set for future presidents was that they could
act pursuant to their authority, legitimate or not.
And Congress would later back them up.
And we had seen this oftentimes.
But then when you get to the steel seizure case, then it turns out to be a different
matter.
My fellow Americans, our country faces a great danger.
We are faced by the possibility that our steel industry will shut down.
This must not happen.
President Truman in the middle of the Korean War was faced by the prospect of steel production
in United States shutting down.
There was a labor dispute that was going to lead to a strike and a shutdown, effectively
a- a shutdown.
President Truman had authority under labor laws to order the steelworkers back to work,
but that was opposed by the unions and the unions were his allies, so, President Truman
chose instead to purport to seize the steel mills and order the, uh, manufacturers to
employ the union members on terms that the president set.
An injunction was sought by one of the relevant steel companies on the basis that this was
an unconstitutional executive order, and their main argument was that the president simply
had no authority to issue it.
They said the president doesn't have statutory authority to issue it, and he doesn't have
power, um, independent constitutional power to issue it.
Truman's rationale for seizing the steel, uh, industry was rooted in his commander-in-chief
authority.
What the Supreme Court ultimately said was that power doesn't stretch all the way to
reordering the fundamental economics of the domestic economy back on the home front.
And the Supreme Court, six-to-three, found that the president had exceeded his authority.
There was a majority opinion by Justice Black that was pretty straightforward.
The majority opinion essentially said, "Look, Congress makes the laws, the president executes
them.
There's no statutory authority for this."
The most famous opinion to come out of Youngstown, interestingly, is not the majority opinion,
nor is it the dissent.
It's actually a concurrence, uh, by Justice Jackson.
And in the concurrence, Justice Jackson, uh, essentially agreed with what Justice Black
said, but he also laid out a framework.
In which he distinguished three scenarios.
The first scenario, uh, is the one in which the president acts consistent with what the
Congress either explicitly or implicitly has authorized.
There, his power is at its zenith.
The second scenario is where the Congress has not acted and the president does, uh,
in a way that it may be open as to whether, uh, he has, uh, the authority.
There, it's the middle ground.
The third scenario is where the president acts contrary to the express will of Congress.
There, his authority is at its nadir.
But as much as scholars admire Justice Jackson's, uh, three-part framework, the devil's in the
details of applying it because a president is almost always going to say he has constitutional
authority.
It was an oversimplified framework, but nonetheless, I think the simplicity makes it, um, a very
attractive starting point for analyzing executive actions.
On the other hand, there's another stream of case law where the Court will say, "Is
this a- a- function that lies within the executive power?"
If so, then the president is relatively free to exercise it, subject to the Bill of Rights.
And so you have this conflict.
Uh, unfortunately, I think that leads to uncertainty where presidents and Congresses don't really
know what the outer limits of authority are.
Most of the time, that doesn't matter.
But whether you have crisis and emergencies where the government needs to respond quickly,
it's bad to have that kind of uncertainty.
I, Ronald Reagan do solemnly swear.
That I will faithfully execute the office of President of the United States.
Every president since Carter has issued an executive order on how regulations are to
be reviewed, um, through the office of Management and Budget.
Particularly through the Office of Information and Regulatory Affairs, which is known as
OIRA.
Um, President Reagan's executive order on regulatory review was the most sweeping.
What President Reagan did was, uh, much more aggressive and much more forceful than previous
administrations.
And so President Reagan came in and he said, "All major regulations have to be approved
by the Office of Management and Budget before they can be released or OMB can send them
back to the agency for more explanation and review.”
Pursuant to authority Congress had issued in the Paperwork Reduction Act and the creation
of OIRA,
President Reagan imposed these cost-benefit analyses.
And it led to a substantial reduction in the number of regulations during his administration.
This kind of executive order was very controversial in the day of, and- and it, and it was challenged
the courts but I think has ever since become part of the presidential toolkit.
People have come to realize that Reagan was not only within his rights to require centralized
review but almost required to do so.
And every president since then has followed his lead.
The Reagan approach continues to loom large.
Um, no subsequent president really disavowed it.
Um, they, you know, tinkered around the edges but not surprisingly, presidents liked to
have enhanced power over the regulatory state.
I think that's been good for the country because it means that agencies are not wasting time,
they're not conflicting with each other, not pursuing individual agendas, uh, that are
at odds with the person we elected to head the executive branch.
The worry is that the administration perhaps behind the scenes, um, will use this power
to effectively override the expert judgments of the administrators to whom the power to
make the rules is actually delegated by statute.
And so in order to take care that the laws are faithfully executed, which is the president's
constitutional duty, he has to issue orders, regulations that execute the powers delegated
to him by Congress.
The question really is how is that done, right? Is it done in a way that entails unilateral
lawmaking as opposed to law execution?
Um, is it done in a way that purports to be carrying out statutory law but that massively
stretches, uh, statutes beyond recognition?
The framers set up the Constitution in such a way that it would be difficult to pass legislation.
All of this was to make it difficult to expand government.
And so if you can make an end run around these limits through executive directives, then
you have expanded government in a way that the Constitution does not contemplate or authorize.
There's nothing problematic about the president using a writing, using a directive to issue
a proclamation or an order.
We should just focus on those that are particularly problematic, that might be illegal, and especially
those that have direct effects on people outside the government.
And I think this also brings us back to the example of the Emancipation Proclamation.
Even if we treat that as having been absolutely valid under those circumstances, those were
extraordinary circumstances.
And I think we really need to think very hard, um, before we justify some action taken in
a very different context on the basis that, you know, Lincoln did it in the Emancipation
Proclamation.
The courts have rightly upheld some executive orders, wrongly upheld some.
There are some great lessons in American history from presidential use of their executive order
and proclamation power.