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The Sausage Factory

Using the “Pen and Phone” to Blur the Separation of Powers

Lincoln's Emancipation Proclamation

Lincoln’s Emancipation Proclamation

Much has been made of the way President Barack Obama seemingly changes laws by the stroke of his Oval Office pen.  For instance, in February, he unilaterally delayed the employer mandate – for the second time – and is pondering an executive order to halt deportation of certain immigrants who entered the country illegally.

When the President of the United States is sworn in, he takes an oath to “faithfully execute the laws of the United States.”  The President does not get to create laws, only sign and enforce them.  In reality, the President does participate a great deal in the legislative process, but, in general, the principle stands: Congress makes laws, and the President executes them – that’s why it’s called the Executive branch.  The President has the discretion to write regulations, but he does not have the discretion to refuse to enforce the laws of the United States. There is an exception to this general rule. If a President thinks that a law is unconstitutional, he is justified in refusing to enforce it, since the Constitution is the supreme law, and the Presidential oath of office requires him to uphold the Constitution. However, according to Clinton Administration Assistant Attorney General Walter Dellinger, the “President should presume that enactments are constitutional…Where possible, the President should construe provisions to avoid constitutional problems.”

Since the Obama Administration has supported the employer mandate, and apparently does not theoretically object to deportations, his actions are not justifiable on constitutional grounds.  So how can the president seem to act so arbitrarily?

The President feels justified to act arbitrarily because of a number of trends that have combined to strengthen his hand over and against Congress’. Understandably, the President would like to see his preferred policies in place, so he can use various Executive actions—like regulations, Executive orders, National Security Directives, signing statements and proclamations—to implement them. However, even when they apparently contradict the law as written, they tend to remain in place due to constitutional law and the judiciary’s traditional restraint when it comes to weighing in upon Legislative-Executive Branch conflicts.

Regulations are one of the most potent ways the Executive Branch can shape policy. According to the Office of Information and Regulatory Affairs:

A regulation is a general statement issued by an agency, board, or commission that has the force and effect of law. Congress often grants agencies the authority to issue regulations. Sometimes Congress requires agencies to issue a regulation; sometimes Congress grants agencies the discretion to do so. Many laws passed by Congress give Federal agencies some flexibility in deciding how best to implement those laws. Federal regulations specify the details and requirements necessary to implement and to enforce legislation enacted by Congress.

Past Congresses are partly to blame for the Executive’s power over the country’s regulations.  The Congress has delegated enormous power to the Executive Branch to actually flesh out the laws it passes.  In 1946, Congress passed the Administrative Procedures Act (APA) that set up rules for the way the Federal Government could propose and establish regulations.  The roots of the law came from a desire to contain President Franklin Roosevelt’s expansion of Federal powers.  To implement the New Deal, President Franklin D. Roosevelt had simply been creating agencies, a practice which many of his fellow Democrats in Congress resented as an incursion upon their prerogatives. The APA allowed Congress to pass general statements of law and direct the agency required to enforce the law to propose regulations necessary to do so.  Those regulations must be developed through hearings, published in the Federal Register, opened for public comment, and then finalized.  Some laws – like the Patient Protection and Affordable Health Care Act (Obamacare, for short) – are so massive that it takes dozens of agencies and thousands of pages of published regulations before the law can actually be carried out.

How much wiggle room the Administration has to write the regulations depends on how tightly the Congress writes the law.  The “unitary executive theory” has long been debated by constitutional scholars. At issue is whether the President is required by the Constitution to wield directive authority, or whether or not the President’s authority to issue directives is limited to what Congress specifically grants him by statute.  Yet certain limitations have always been acknowledged. Thomas Jefferson, for instance, refused to enforce the Alien and Sedition Act because he believed it to be unconstitutional.  Other refusals to comply with the law would be less acceptable.  No one, for example, would have thought that President Obama could have ordered the IRS to suspend the Bush tax cuts simply because he opposed them.  That would require a law to be passed.

It is rare in a democracy for an Executive to have so much discretion in shaping laws.  Indeed, in most parliamentary systems, the prime minister is a member of the legislature.  In parliamentary systems, the bills are passed with regulatory-type language included, so as to leave the professional bureaucrats with less room for interpretation.  So the liberties an administration takes with legislation is often the fault of Congress delegating its responsibility to the Executive (something that would have caused extreme heartburn for James Madison and his constitutional partners).  As Justice William Rehnquist wrote: “When the President acts pursuant to an express or implied authorization from Congress, he exercise not only his powers but also those delegated by Congress.”

Formal regulations are not the only tool that the President has at his disposal.  The President has many pseudo-legislative powers, including the ability to issue proclamations, attach signing statements to legislation, issue generally top-secret National Security Directives and sign Executive orders.

Proclamations can be political instruments used to praise certain behaviors, as well as celebrate national holidays, etc.  Some famous proclamations are Washington’s and Lincoln’s Thanksgiving proclamations. The most historical one was Lincoln’s Emancipation Proclamation, though in many ways the Emancipation was more of an Executive order than a traditional proclamation, since it ordered Federal soldiers not to return slaves to their owners in states in rebellion against the Union.

Signing statements are another way the President tries to shape legislation. According to the Library of Congress, Presidents have issued signing statements beginning with James Madison, but President Ronald Reagan’s Administration began to deploy them much more frequently.  Subsequent Presidents have followed suit.  They have been fairly controversial, as they allow a President to declare his interpretation of legislation, as well as his intent to not enforce sections of the law he finds unconstitutional. An example was when Congress passed restrictions on how the Administration could interrogate captured terrorists, and President Bush issued a signing statement declaring that section in conflict with his constitutional duties as Commander in Chief.  While organizations like the American Bar Association strongly object to signing statements as an unconstitutional equivalent of a policy line-item-veto and on the grounds that that the interpretation of the law is the job of the Supreme Court, Presidents have steadfastly maintained that they have a clear obligation not to enforce a law that conflicted with their oath to “protect and defend the Constitution of the United States.”

National Security Directives are those things the President signs for Jack Bauer when he is trying to save the nation.  A non-fictional example would be the order President Obama signed to initiate the killing of Osama bin Laden.

Then there are Executive Orders.  Let’s start by defining what they are.  According to Professor Phil Cooper, who wrote the definitive work on Executive orders:

Executive orders are directives issued by the president to officers of the executive branch, requiring them to take an action, stop a certain type of activity, alter policy, change management practices, or accept a delegation of authority under which they will henceforth be responsible for the implementation of law (16).

They are not mentioned in the Constitution, but their use has been developed in support of the President’s constitutional duties. Executive orders are somewhat akin to directions an Executive will give to his employees – in this case, the millions of individuals who work for the Federal Government.  And they are paid simply to execute the laws passed by Congress.  The reality, however, is a lot more complicated than that.

Executive orders started as an informal practice, but were given form and structure by Presidents Ulysses Grant, Herbert Hoover and John F. Kennedy.  Under Executive Order 11030, issued by President Kennedy and amended by Johnson, Carter and Reagan, Executive orders are submitted to the Director of the Office of Management and Budget (OMB) for approval. The draft then goes to the Attorney General for consideration of its legality and then to the office of the Federal Register to make sure it is in the correct form.  If all steps are cleared the order is submitted to the President for signature.  Once signed, it must be published in the Federal Register.

It’s easy to see why these are attractive to Presidents.  It is far simpler to issue an Executive order than to get a bill through Congress, or through the arduous process of promulgating a regulation.  No wonder President Obama proclaimed he was going to enact his 2014 legislative agenda with his “pen and phone”, without relying on Congress to pass legislation.

There have been some dramatic uses of Executive orders in American history.  Lincoln issued an executive order to establish military courts in Louisiana. FDR used them to implement his New Deal policies and to order the incarceration of Americans of Japanese descent during World War II.  Truman used them to desegregate the military.  President Kennedy created the Peace Corps. President Johnson mandated that affirmative action be used in government contracting.  President Richard Nixon imposed wage and price controls on the economy.  President Carter imposed an oil import fee.  President Reagan fired striking air traffic controllers.  President George W. Bush created an Office of Homeland Security, which Congress later turned it into a cabinet level position.

Aside from the fact that the President can use them to make significant policy changes, there is another practical problem with all of these Presidential orders.  They remain in effect unless specifically overturned by a future President.  It is complicated, because before President Grant’s Executive order that regularized these commands, there was often no record kept of them – indeed some were handwritten, or scribbled in the border of maps.  This has often led to confusion, as in a 1999 Supreme Court ruling that overturned an Executive order issued by President Zachary Taylor in 1850 that had revoked rights granted to an Indian tribe in an 1837 treaty.  In fact, the United States was accidentally under a continuous state of emergency from 1933 until 1976 because no one had ever overturned Franklin Roosevelt’s order during the Great Depression.  In 1974, Congress, taking no chances, terminated all pending emergency declarations ever issued by a President after two years.

Rarely do the courts directly overturn Executive orders.  One of the few times it has was in Youngstown Sheet and Tube Co. v. Sawyer, in 1952 where the Supreme Court overturned Executive Order 10340 by President Harry Truman that ordered the Federal Government to take control of American steel companies that were under a threat of a strike, as the potential loss of our steel manufacturing base in the middle of the Korean War was a threat to national security.  The Supreme Court ruled that it was the function of the Congress to make laws, and the President’s function to execute those laws.  In the opinion of the Court, Executive Order 10340 crossed the line between these two functions. In short, the President was attempting to make law, rather than enforce existing law.

Justice Robert H. Jackson established a three-part test regarding whether a President has the authority to issue an executive order:

  1. “When the President acts pursuant to an express or implied authorization of Congress his authority is at its maximum. For it includes all that he possesses in his own right plus all that Congress can delegate.”

  2. “When the President acts in absence of either a congressional grant or denial of authority, he can only rely on his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than abstract theories of law.”

  3. “When the President takes measures incompatible with the expressed or implied will of Congress his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.  Courts can sustain executive presidential control in such a case only by disabling the Congress from acting on the subject.  Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”

If we apply Justice Jackson’s criteria to President Obama’s actions, it would appear that the orders to extend deadlines and modify the Patient Protection Act would come under the second or third test, but an order to refuse to carry out portions of the immigration law, particularly in the absence of a constitutional claim, would clearly be “incompatible with the expressed or implied will of Congress.”

The Supreme Court overturned an Executive order during the Clinton Administration.  E.O. 12954, issued by President Clinton, would have prevented the Federal Government from contracting with companies that permanently replaced striking workers.  The U.S. Chamber of Commerce sued, and the court ruled that since Congress had specifically considered and rejected this action during its consideration of the National Labor Relations Act, that the President was attempting to unconstitutionally supersede the law.

Although the court ruled against President Clinton on the matter of E.O. 12954, there are numerous examples of the courts refusing to overturn Executive orders.  For instance, the Supreme Court ruled in the U.S. v. Curtiss-Wright Export Corp that the President had substantial authority in foreign policy cases. It went so far as to write, “In the vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation.”

A second way executive orders can be overturned is by an act of Congress.  However, this has a practical limitation.  Congress has previously tried to veto actions, and had them overturned by the courts.  The most famous case is INS v. Chadha, which ruled the legislative veto unconstitutional, since the Constitution requires the President to sign legislation for it to go into effect. This has had widespread impact on the Congress’ ability to regulate Presidential activities.  For instance, the War Powers Resolution permitted a President to initiate military action without an express sanction from Congress included a provision to require the President to withdraw if a simple majority of Congress disapproved; the resolution did not require the President’s signature.  Following INS v. Chadha, the War Powers Resolution had to be amended to pass constitutional muster—i.e., the President would henceforth have to sign the resolution of disapproval, and the standard two-thirds majority would be necessary for overriding the veto..  The situation would be much the same for a disapproval resolution for any other Executive action. So in reality, the only way Congress can overturn an Executive order is to pass legislation that changes the President’s claimed authority to issue the order.  Like any other bill, it must pass both Chambers and be signed by the President.  Since a President is unlikely to sign legislation overturning his own Executive order, a two-thirds supermajority of both the House and the Senate must be achieved to override his veto.  To put a conclusive point on it, of the more than 2000 Presidential vetoes issued, Congress has overridden fewer than 100.

Although Congress rarely can override an Executive order, they are not totally without options. A more typical scenario is that the President’s Executive order is superseded when the President and the Congress cooperate. For example, President George W. Bush issued an Executive order creating an office of Homeland Security in the White House following the 9/11 terrorist attacks, and Congress responded by cooperating with the Administration to pass a government reorganization bill that created a cabinet-level position for the Director of Homeland Security.  Congress could supersede the President’s refusal to enforce immigration laws by passing an immigration reform bill specifically stating how the new law should be enforced.

Similarly, Congress has also been so limited in the area of curbing regulation.  In 1996, the Congress did pass the Congressional Review Act that reinforced Congress’ power to overturn a proposed regulation, but only if the President signs the joint resolution or has his veto overridden.  Congress has always been authorized to overturn a regulation, but the unique aspect of the Congressional Review Act was that Congress changed its own procedures – which Article 1, Section 5 of the Constitution allows – to allow the resolution overturning the regulation to be considered on an expedited basis.  This has only been used once to reject a Clinton Administration regulation on ergonomics.

The third way Executive orders are overturned is by an Executive order issued by a subsequent President.  In fact, this is the most common way Executive orders are overturned.  President Reagan famously revoked 39 Executive orders put in place by the Carter Administration, with most of the repeals taking place before the Inaugural Parade had passed the White House reviewing stand.  The changes included everything from removing price controls on oil to freezing all regulatory activities until a review could be made by the new Administration.  On his first day in office, George W. Bush similarly imposed a 60-day moratorium on all new rules and established a hiring freeze for all Federal agencies.

Other Executive orders are now routinely ping-ponged when Administrations change parties.  President George H.W. Bush issued his Mexico City Policy, which prohibited all U.S. non-governmental organizations (NGOs) receiving Federal money from performing or promoting abortion services as a method of family planning with non-US government funds in other countries.  This Executive order was repealed by President Clinton, reinstated by President George W. Bush, and then repealed once again by President Obama.

Presidential pseudo-legislative powers not only dramatically increase the President’s ability to manage the government, but also provides an extra-constitutional—and sometimes, perhaps, unconstitutional—means of generating the equivalent of legislation.  While Congress has frequently complained of this end run around its power, the courts, except in rare cases, have made it nearly impossible for Congress to override Executive orders with anything short of a two-thirds supermajority in both the House and Senate.  It is a tool by which Presidents of both parties have increased their role in the making of laws, not just their execution.  The real power to go around Congress also increases the President’s leverage in negotiating legislation with the Congress in ways the Founders probably never would have anticipated.

In Federalist 73, Alexander Hamilton wrote that “In the case for which it [the veto power] is chiefly designed, that of an immediate attack upon the constitutional rights of the Executive, or in a case in which the public good was evidently and palpably sacrificed.” Things have certainly changed.  Through changing precedent and the ever-encroaching power of the Executive against the Legislative branch, President Obama does have enormous power to use his pen and phone to influence the policy debate.  Now that he has been elected to his final term, the only realistic check on his power is the impact his decisions have on the fortunes of his political party in the mid-term elections.  Ironically, establishing a republic was supposed to allow the people’s representatives to act on the people’s behalf, but in the modern era, practically speaking, the only realistic check on the President’s powers appears to be the public opinion of the people – giving the U.S. system an air of direct democracy that would have surprised the authors of the Constitution.

Work Consulted

Cooper, Phillip J. By Order of the President. Lawrence: University of Kansas Press, 2002.

Mark Strand is the President of the Congressional Institute and Timothy Lang is a research assistant. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the legislative branch.

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