Executive orders: Part of the framers’ grand plan

By Brianne Gorod
March 19, 2014

President Barack Obama has used his executive authority to stop deporting undocumented immigrants who had been brought to the United States as children. The administration has also announced that it will stop requesting mandatory minimum sentences for low-level, non-violent drug offenders.

Obama is now using executive orders and other unilateral exercises of executive power to advance his agenda rather than wait on Republicans in Congress.

The GOP has grown increasingly outraged by the president’s actions. House Republicans last week passed the “Enforce the Law Act,” part of a continuing campaign to label any action by the president as “executive overreach.” House Speaker John Boehner (R-Ohio) earlier this year felt the need to “remind” the president that “we do have a Constitution.”

Our Founding Fathers, however, would not be surprised that Obama has engaged in unilateral actions. It would surprise them if he hadn’t.

The founders foresaw the need for a strong president who is capable of unilateral action. Indeed, one danger they sought to avoid was an ineffectual president who is incapable of executing the nation’s laws.

The framers learned the hard way, under the Articles of Confederation, about the difficulties created by governing without an executive branch. Scarred by their experiences under England’s King George III, the drafters of the Articles of Confederation decided not to create an executive branch at all. That government lasted just eight years and the absence of an executive branch was a major weakness contributing to its demise.

“A feeble Executive implies a feeble execution of the government,” Alexander Hamilton wrote, “. . . . and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.”

The framers wrote the Constitution in part to remedy the lack of an executive branch under the Articles of Confederation. They knew that effective governance required an executive branch to enforce the laws passed by Congress.  So they established a strong executive branch headed by a president with the authority to sometimes act alone where the national interest requires it.  Then they gave the president express powers and responsibilities, including the obligation to “take Care that the Laws be faithfully executed.”

Unlike Congress, which was required to meet only once a year, the president had to always be on duty fulfilling his responsibilities. The framers did not want a monarch, but they recognized that a strong president who is capable of unilateral action is no threat to the republic, because of the separation of powers, which Obama’s critics claim he threatens. Just as the Constitution gives some express powers to the president, it gives others to Congress and still others to the courts.  The other branches can use these powers to check a president who goes too far.

One manifestation of a president’s responsibility to “take care that the laws be faithfully executed” is prosecutorial discretion — the authority to determine how best to enforce the nation’s laws.

As Supreme Court Justice William Rehnquist wrote nearly 30 years ago, an “agency’s decision not to prosecute or enforce [a law] . . . is a decision generally committed to an agency’s absolute discretion.”

After all, the executive branch is in the best position to weigh competing priorities and determine how best to enforce the law. For similar reasons, courts generally defer to executive branch interpretations of the law where there is ambiguity in Congress’ wording — as is often the case.

While not unlimited, this discretion means that Obama has far more latitude than his critics say he does in making decisions about what the law means and how it can best be enforced. This authority extends to matters like deportation and federal law enforcement.

We should not deprive future generations of a system that has safeguarded effective governance for more than 200 years because some of Obama’s opponents want to score political points. House Republicans and Obama’s critics should heed the lesson that the founders learned long ago:  A strong president does not a dictator make.


PHOTO (TOP): President Barack Obama signs an executive order to raise the minimum wage for federal contract workers to $10.10 an hour starting next year, during an event at the White House in Washington, February 12, 2014. REUTERS/Kevin Lamarque

PHOTO (INSERT): Signing of Constitution by Howard Chandler Christy. Courtesy of Architect of the Capitol

PHOTO (INSERT): President George Washington, lithograph of painting by Gilbert Stuart. Courtesy of LIBRARY OF CONGRESS.


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@carnivalchaos, what you say is true, but I think the democrats are happy to oblige the republicans and indeed have helped them. As we know, without gerrymandering the republican party would not hold a majority at the federal level, and probably loose a lot of states too. The democrats understand this and allow it so we can continue to have a two party system with opposition. Having a single party in absolute power is not a situation either parties wants. In fact we’ve seen senators switch parties to keep the balance of power.
Remember, both parties are paid from the same small groups. Opposition is measured to keep the appearance of democracy.

Posted by tmc | Report as abusive

@carnivalchaos. . . you’ve really got your panties in a twist over your partisan hypocrisy and continue to fail to address the ridiculous claim of Ms. Gorod’s “editorial” that the founders of our Constitution somehow expressly intended for a President unable to push his legislative agenda through Congress to govern by executive order. NO, there is NO such intent period. The duty of the executive to “enforce” the nation’s laws does not mean that the drafters of our Constitution intended for a President to CREATE NEW LAW BY EXECUTIVE FIAT or to decide to AMEND ALREADY PASSED LAW (Obamacare) without Congressional consent. You, like Ms. Gorod, are only interested in justifying governance by executive order when it is used by your Dear Leader Obama. It’s certain that both of you were screaming the opposite argument when Dear Leader Bush was in power. The simple truth, that you seem incapable of acknowledging, is that governing by executive order is authoritarian no matter who is doing it. Seriously, do you even think about how ridiculously hypocritical you sound when you write, “the only reason conservatives are complaining about Obama’s use of executive privilege is because they are opposed to anything and everything he does.” Substitute the words “liberals” and “Bush” in your sentence and you get the same stupid argument. Last, you really need to cut down on the KoolAid intake. Making a statement like, “the right will continue trying to undermine our government and our nation” is just pompous hyperbolic gibberish.

Posted by Riobrava | Report as abusive

This article strikes a level of abstraction that obscures several important issues.

Yes, the Founders contemplated that executives could issue directives to those under their supervision, but also empowered Congress to restrict whom he could supervise and how. All a president can do to someone who defies an order is to fire him, and he does not have the power to fire all those he may appoint. Some, once appointed and confirmed, are independent of his supervision, and must make their own decisions about which statutes are constitutional and which are not. The president has no authority to order civilians to do anything unless they are called up as militia, and there are limits on that as well.

There are limits to what any president can lawfully or practically do using executive orders. The subject needs to be discussed at the level of detail appropriate to each.

Posted by Jon_Roland | Report as abusive

What nearly every examination of this kind neglects to remember, is that all Statute is Municipal, bearing on the ‘Members of the Polity’.

In researching ‘The Whiskey Tax’, I discovered two fascinating elements … Washington requested and received permission from the Senate (only), to extend federal “district” jurisdictions over the States, and in the use of those jurisdictions, Hamilton, who was assigned by Washington to actually execute the statute, STILL couldn’t accomplish the task … without FIRST securing from the ‘Rebels’, their … Oath of Allegiance to the United States … under the false bravado of threatened prosecution, rather than FIRST filing charges. Why? Because the alleged ‘Rebels’, as State Citizens, were Lawfully outside the Polity of the federal division, existing under original, ordinary jurisdictions of their States and thus had to be tricked into Traverse under the unique, separate federal ‘district’ jurisdictions to become Properly Liable.

I too, hold that the Constitution (of 1787; distinct from its simile adopted by the foreign ‘Government of the District of Columbia in 1871) can only be the amended Articles. Nevertheless, both documents pertain only to administration of governance, not ‘rule and regulation’ over The Sovereign People (Agent can not command the Principal). ‘The Law’ is the Common Law conscribed by The Maxims … applicable to People and divisions of their institute of government, alike.

So, on point, Executive Orders are pertinent only under the federal division’s particular jurisdictions and even then, only upon ‘Persons’ under Oath (or Contract) to the United States and thus within it’s municipal Polity.

“People of a state are entitled to all rights which formerly belong to the King, by his prerogative.” (Lansing v. Smith (1829) 4 Wend. 9,20)

“A citizen of the United States is a citizen of the federal government …” (Kitchens v. Steele 112 F.Supp 383)

“The United States Government is a foreign (municipal) corporation with respect to a state.” Volume 20: Corpus Juris Secundum, (P 1785: NY re: Merriam 36 N.E. 505 1441 S.Ct. 1973, 41 L. Ed. 287)

Posted by PatFields | Report as abusive

carnivalchaos: “Next time you disagree with someone’s post, try refuting specific points that they make rather than just resorting to lobbing insults and saying they’re wrong”
OK Here goes.

carnivalchaos: “This is a democracy. (… It’s a type of democracy where we vote on people to represent us in a government that is bound by a Constitution.”
NEWS FLASH: A type of government where we vote on people to represent us in the government is called a R-E-P-U-B-L-I-C! Look it up.

carnivalchaos: “…the only reason conservatives are complaining about Obama’s use of executive privilege is because they are opposed to anything and everything he does.”
Guess what? That’s what opposition parties do. Every president (and governor) in history that has had a legislative branch controlled by the opposition party has managed to work WITH them to get things done. For some reason THIS president can’t seem to do it. Why is that? Maybe it’s because early on they were told “they can come along for the ride, but would have to sit in the back of the bus.” Obama style Bipartisan inclusion.

carnivalchaos: “they have shut down the government for partisan purposes”
You mean the “Shutdown” that occurred because the D-E-M-O-C-R-A-T controlled Senate refused to bring all those bills that the Republicans in the House passed to fund everything in the government EXCEPT OBAMAcare to the floor for debate, and consideration?
Is that the shutdown you’re talking about??????

tmc: “… I think the democrats are happy to oblige the republicans and indeed have helped them.”
They sure are. When the Republicans accept money from the Democrats to help to rid them of TEA party members (The only people in the Senate who are actually opposing them.) I, and many others are through with both major parties.

tmc: “As we know, without gerrymandering the republican party would not hold a majority at the federal level”
Get off your high horse. Democrats have, and no doubt will again use gerrymandering to gain seats wherever, and whenever possible.
The fact that they don’t have the opportunity at the moment is just a piece of good luck.

Riobrava: “The duty of the executive to “enforce” the nation’s laws …”
Most of us would be happy if he would just enforce the laws already on the books. Especially people living in southern border states.

Posted by FroboseTF | Report as abusive

@tmc, I don’t agree with you on the point that Democrats “allow” such things as gerrymandering – at least not at the state level, which is where it all begins. A Republican state gerrymanders in favor of their party, and there isn’t a lot the Democrats can do about it. Then that Republican goes to the House and the rest is history.

But yes, all politicians are guilty of being purchased, as is evidenced by the lack of Democrats pushing to institute some kind of campaign/lobbying reform.

@Riobrava, just because something isn’t expressly mentioned in the Constitution doesn’t mean it’s unconstitutional. Can you imagine a Constitution that addressed every single possible eventuality of governing for the President AND Congress? I get what you’re saying, but you have to allow for the fact that the Framers understood they couldn’t cover EVERYTHING.

It’s accepted that Presidents have Executive Power and has been since, literally, George Washington. Now, take a look at Ms. Gorod’s qualifications, the facts of history, precedents, etc., and then tell us that your opinion is more than just that – opinion.

Posted by JL4 | Report as abusive

@JL4, thank you for note. Yes, you are correct that the Framers could not have “addressed every single possible eventuality.” However, they were extremely clear on not wanting to place too much power in the hands of any one branch of government. Our current and previous Presidents have used executive orders far too frequently. Regarding Ms. Gorod’s “qualifications”, having also been a appellate law clerk, I am not at all impressed with her editorial. She does not cite anything except a few quotations to justify her very expansive claim of a very large extension of executive power. That simply doesn’t cut it and she knows that. I use your words that Ms. Gorod’s is nothing more than her opinion.

Posted by Riobrava | Report as abusive

tmc: I seriously doubt that Democrats are fretting over the possibility of being in complete control of the country. I don’t know anyone who thinks that the entire country is swinging over to the Democratic camp, or even a sizable migration. Heck, Democrats can’t even pass universal background checks for gun purchases when 90% of the country supports doing it.

Nor have I heard of any Democratic politician who wants the Democrats to lose seats to the Republicans for fear of having too much political influence. The Democrats are culpable about a lot of things, but sanctioning the GOP’s democracy-killing gerrymandering is not one of them. For sure, they’re not strangers to gerrymandering themselves, but not to the extremes that the Republicans have recently.

Pols switch parties when they see that switching parties will improve their chances of staying in office. That’s the only reason. I just don’t think they’re doing it to make sure the opposition party doesn’t lose too many seats.

But I completely concur with you on the point regarding who both parties are receiving money from. You’re right, both parties eat from the same pig trough. Our system is corrupt and not longer works for the American people. Unfortunately, either not enough Americans are aware of it, or not enough Americans care.

Posted by carnivalchaos | Report as abusive

Well, if you both agree that politicians are purchased, then you must agree that it is very likely not their decision about gerrymandering and keeping the balance of power. Why would they allow some of those districts? It wouldn’t have been to hard to get public support to stop them. I believe deals were made so republicans could proceed with gerrymandering.

Posted by tmc | Report as abusive

tmc: I don’t really understand where you’re getting this from. What are you basing your conclusion on? Right now the Republicans are doing everything they can to win back the majority in the Senate. And clearly the Republicans are doing everything they can to destroy Obama’s Presidency. There’s nothing they would like more than to have a majority in the House, the Senate, and to have a Republican in the White House. And if you have any doubts about that, please note that it wasn’t that long ago that they had just that with Bush. Consider the Clinton Presidency. During his 2nd term the Republicans controlled the House and the Senate, and then they impeached him over a blow job. Obviously they weren’t too concerned about balance of power, now were they?

tmc, you write a lot of good posts, but I think you’re off base on this issue. I’ve never heard anyone make that claim before. However, I will say this. Our government has been bought out by a loose organization of plutocrats, some very wealthy industry execs who DO want to maintain the illusion of a balance of power, provided that the Republicans dominate. They’ve pretty much gotten their way on that. Perhaps that’s where you’re coming from. I just don’t think the politicians themselves are willing to sacrifice seats held by their party simply to maintain a balance of power. To the contrary, I think the pols in both parties are doing everything they can to get as many of their guys into power.

Why would they allow some of those districts? Because they don’t have a choice. The gerrymandering takes place in state legislatures that are dominated by one party or the other. They’re not asking the opposition party for permission, because they sure wouldn’t get it. Besides, they don’t need the other party’s permission. If one party dominates a state legislature they can redistrict pretty much any way they want. They can redistrict once every 10 years. Once it’s set, it’s good for 10 years. It just wouldn’t make sense for the Democrats to make a deal with Republicans to allow them to gerrymander districts that give the Republicans a numbers advantage in Congress so that the Democratic President can’t get anything done. But as I said, the corporate folks who are really in power DO want Americans to remain appeased and docile, and maintaining the appearance of a balance of power and a functioning democracy is important to their game plan. They pretty much have things just the way they want them now, though they’d probably rather see a Republican in the White House because that would make it easier for them to get everything they want. As it is now, they probably get about 90% of what they want. It’s absurd and Americans had better wake up and do something about it.

Posted by carnivalchaos | Report as abusive

Thanks @carnivalchaos. Perhaps your right, but I’m still a bit leery about it. The national democratic party could have helped out with the states facing gerrymandering if they wanted to. I remember reading an article a few years ago on the topic that said deals were made. I don’t think corporate America cares much about who’s in power as they know they themselves are. I don’t believe there is a group, but as I’ve posted before its more like a very loose joint venture in controlling the government. Often there are corporate interest on both sides of an issue and they have to “fight it out” by seeing who can gain the most support. Democratic in some evil sense I guess.

Thanks for your discussion. This is why I troll Reuters.

Posted by tmc | Report as abusive