Reported by May 20, 2016
Compiled by Jerry Broussard of WhatDidYouSay.org
Do Executive Orders Violate the Constitution ?
The Myths
Presidents can issue executive orders that are legally binding on the general public.
These executive orders are backed by the full force of law just like laws passed through the formal legislative process.
A president can use executive orders to go around congress.
The president can use executive orders to modify laws passed by congress and can order executive departments to selectively enforce provisions of laws.
These executive orders are authorized by the Constitution.
The Truth
Yes the president can issue executive orders however these orders are only binding on members of the executive department of the federal government. They are not legally binding on anyone outside the executive department.
Only laws passed through the formal legislative process have full force of law. Executive orders do not meet this requirement.
Congress alone has the power to write and pass laws. If congress chooses not to pass laws that the president advocates for the president can in no way act unilaterally. The president is restrained by the Constitution.
The president must enforce laws that are passed by the formal legislative process as they are written. If the president does not like a bill passed by congress or feels it violates the Constitution then the president can veto it before it becomes law.
Issuing executives orders that are given the full force of law is a clear violation of several provisions of the Constitution.
The Facts
The framers of the Constitution greatly feared concentration of power into a strong tyrannical central government so they incorporated many features in the Constitution that they believed would prevent this from happening. The Constitution created a government with three distinct branches. Each branch is granted separate distinct powers that are clearly spelled out in the Constitution. This separation of powers is one of the cornerstones of the Constitution that they believed would prevent concentration of power.
Article 1 Section 1 of the Constitution states that Congress is the only branch that is granted legislative power. The definition of legislative power used by the framers of the Constitution is the most universally accepted one, the power to write and pass laws.
Article 1 Section 7 defines the formal legislative process. Laws are not valid unless they are passed through this process.
Article 2 Section 1 states that executive power is granted to the President. Executive power is most commonly defined as: the authority to enforce laws and to see that they are carried out.
Article 2 Section 2 lists the powers of the president. Nowhere in this section or the rest of the Constitution is the president granted the power to write laws.
Article 2 Section 3 lists the duties of the president. The second from the last clause states “the president must take care that laws are faithfully executed.” If the president modifies laws through executive orders or selectively enforces provisions of laws through executive orders the president is violating this clause
Article 6 Section 2, which is the supremacy clause, defines what the law of the land is. Executive orders are not listed in the supremacy clause therefore they are not the law of the land. Only laws that do not violate the Constitution are the law of the land. Because executive orders are issued by the executive department outside of the formal legislative process and their contents most often violate provisions of the Constitution they are not the law of the land
The Proof
Article 1 Section 1 – Legislative powers
All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Definition of Legislative Power
the exercise of the power and function of making rules (as laws) that have the force of authority by virtue of their promulgation by an official organ of a state or other organization
Article 1 Section 7—Legislative Process
House to originate all revenue bills. Veto. Bill may be passed by two-thirds of each House, notwithstanding, etc. Bill, not returned in ten days to become a law. Provisions as to orders, concurrent resolutions, etc.
1. All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.
2. Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the president of the United States; if he approve, he shall sign it, but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration, two thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the president within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.
3. Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the president of the United States; and before the same shall take effect, shall be approved by him, or, being disapproved by him, shall be re-passed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.
Article 2 Section 1
The Executive power shall be vested in a President of the United States of America
Definition of Executive Power
Authority to enforce laws and to ensure they are carried out as intended.
Powers of the President
Article 2 Section 2 – President to be Commander-in-Chief. He may require opinions of cabinet officers, etc., may pardon. Treaty-making power. Nomination of certain officers. When President may fill vacancies.
1. The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
2. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he 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: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
3. The President shall have the power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session.
Duties of the President
Article 2 Section 3 President shall communicate to Congress. He may convene and adjourn Congress, in case of disagreement, etc. Shall receive ambassadors, execute laws, and commission officers.
He shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he may receive ambassadors, and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.
The Supremacy Clause
Article 6 Section 2. This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.
Federalist 47 by James Madison
No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.
…these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying ”There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or, ”if the power of judging be not separated from the legislative and executive powers,” he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted.
The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law
GOP struggles for response to Obama’s transgender rule
By 5/20/16 12:01 AM ; Chief Congressional Correspondent The Washington Examiner
Republicans are outraged at the Obama administration’s directive expanding the rights of transgendered students in public schools, but they don’t yet know what to do about it. Other than the introduction of a bill sponsored by Rep. Rep. Luke Messer, R-Ind., which would block the federal government from withholding funding from non-compliant schools, Republicans made no legislative move to stop the new rule this week.
But some were already talking about taking the fight to court, in the hopes that a judge would decide Obama’s move is illegal.
“We write laws, and we need to respect the president that he disagrees with us, but that is why the courts would be involved,” House Rules Committee Chairman Pete Sessions, R-Texas, told the Washington Examiner.
Sessions also sent a letter to President Obama this week that called on him to retract the directive pending “thorough judicial review.”
House Education and the Workforce Committee Chairman John Kline, R-Minn., said lawmakers, “are just looking” at ways to block Obama’s move. But he admitted they are stumped on how to do it because it was sent to schools as guidance, and doesn’t appear to be a new executive action or new rule.’
“I’m not sure how you use the power of the purse in this case,” Kline told the Examiner, referring to the possible idea of trying to defund Obama’s initiative. “There have been ongoing discussions, but I don’t even know how you would do that.”
The new guidance, issued last week by the Justice and Education Departments, cites current federal education law in a letter informing schools they must allow transgendered students to use the bathroom or locker room of their choice, and that failure to do so would amount to discrimination. The letter also told schools they must protect transgendered rights to play on sports teams that do not align with their biological gender. The administration said federal funding could be withheld from schools that do not follow the directive.
Republican lawmakers told the Examiner their offices have been flooded with calls and emails from constituents demanding Congress use their “power of the purse,” to defund the new requirement.
“My constituents are mad as heck that the president has tried to take this action,” said Rep. Bill Flores, R-Texas, chairman of the Republican Study Committee, a large, conservative faction of the GOP.
Flores collected dozens of House GOP signatures on a letter sent to Obama this week demanding clarification and further details about the guidance. The questions they asked include “why schools must disregard privacy, discomfort and emotional strain imposed on other students during use of bathroom, showering and changing facilities and overnight accommodations.”
Flores demanded a reply by May 30.
House Speaker Paul Ryan, R-Wis., dodged a question on whether House Republicans should go even further and use the appropriations process to stop the rule’s implementation. “This should be left up to the states, and the federal government ought to respect that,” Ryan said Thursday.
While the GOP is still searching for the right response, Sessions said Congress may ultimately end up trying to defund the directive.
“Congress can pass legislation in the House and the Senate and take it to the president and say, ‘we disagree with you,'” Sessions said. But with Obama likely to veto such a bill, Sessions said, “a more likely scenario,” involved defunding it during the appropriations process.
Republicans have typically used the annual appropriations bills to insert policy provision that otherwise would never receive a presidential signature, such as banning taxpayer funding for Planned Parenthood. These provisions end up passing because they’re attached to “must-pass” spending legislation.
And while Democrats often oppose these policy measures in spending bills, the widespread backlash against the directive may lessen their opposition, Sessions said.
A CBS/New York Times poll found more people believe transgendered persons should use the bathroom that aligns with their biological gender, rather than the gender with which they identify, by a margin of 46 percent to 41 percent. Sessions said those numbers give Republicans confidence they can fight Obama with most of the public on their side.
“I’d love to see all the Democrats get behind the president on this issue,” Sessions said.
What Did You Say? 
Posted on January 12, 2013