May the President Lawfully Make “Executive Orders”?
The Guiding Principle is this: The President has no authority to do ANYTHING apart from constitutional authority or statutory authority (assuming the statute itself is constitutional).
1. So! Respecting those matters within his constitutional authority & duties, and authority & duties imposed by constitutional statutes, the President may make “orders” – call them “executive orders” if you like.
For example: It is the President’s constitutional duty “to take care that the Laws be faithfully executed”. Thus, he has the duty to enforce [constitutional] laws made by Congress. How does he enforce the laws? Sometimes, by means of “orders”.
To illustrate: Say Congress makes a law, as authorized by Art. I, Sec. 8, clause 6, making it a felony to counterfeit the Securities and current Coin of the United States. If U.S. Attorneys are not prosecuting counterfeiters, the President should “order” them to do it. Or fire them.
But say Congress makes a law which purports to make possession of shotguns shorter than 18 inches a crime. Since the President’s Oath requires him to “preserve, protect and defend the Constitution”, he is obligated to “order” the U.S. Attorney General and the U.S. Attorneys to refuse to prosecute anyone for possession of sawed-off shotguns. Why? Because such a “law” is unconstitutional as outside the scope of the legislative powers granted to Congress in Our Constitution. It also violates the Second Amendment.
Clearly, such an order to refuse prosecution falls within the President’s constitutional duties (enforce the Constitution), and he is giving an order to people within the Executive Branch. The President is the one who is charged with carrying out the Acts of Congress – he has the “executive Power”. But because of his Oath, he may not carry out unconstitutional “laws”. That is one of the checks on Congress.
The President may also properly make orders addressing housekeeping issues within the Executive Branch: Dress codes, no smoking or drinking on the job, he may encourage executive agencies to hire qualified handicapped people, and the like. Just as if you have a business, you may make orders addressing such matters.
So! Do you see? The President may lawfully make orders to carry out his constitutionally imposed powers and duties, and powers bestowed by statutes which are constitutional; and he may address “housekeeping” issues within the Executive Branch.
2. But a President may not lawfully, by means of “orders”, exercise powers not delegated to him by the Constitution or by (constitutional) Acts of Congress.
Yet Obama has issued various executive orders which are unlawful because they are not authorized by the Constitution or by (constitutional) Acts of Congress. Here are two executive orders which are particularly pernicious because they undermine our foundational Principle of “Federalism”, and have as their object the “improper consolidation of the States into one … republic.”: 10
E.O.13575 – Establishment of the White House Rural Council: This E.O. provides for over 25 federal departments & agencies to run every aspect of rural life!
E.O. Establishing Council of Governors: The effect of this E.O. is to erase the Independence and Sovereignty of the States and consolidate us into a national system under the boot of the Executive Branch.
Joseph Stalin couldn’t do better than this. These E.O.s are blatantly unconstitutional as usurpations of powers not granted in The Constitution! So, Nullify them!
3. Likewise, executive agencies may not, by means of “administrative rulemaking”, usurp the powers of Congress. (Remember, because of Art. I, Sec.1, all rulemaking by executive agencies is unconstitutional)!
Here are several cases of such unconstitutional rulemaking:
a) When Congress refused to pass the DREAM ACT, which provided a path to citizenship for certain categories of illegal aliens, ICE had no authority to implement it, in whole or in part, by executive “memo”! Power over Rules of Naturalization (i.e., who qualifies for citizenship and what are the procedures) is expressly granted to Congress by Article I, Sec. 8, cl. 4, which grants to Congress alone the Power “To establish an uniform Rule of Naturalization”.
The President has no constitutional power over immigration & naturalization except to enforce the Acts of Congress respecting those subjects. Article II, Sec. 3, which imposes upon the President the duty to “take care that the Laws be faithfully executed”, requires the President to enforce such constitutional Acts of Congress.
But if Congress refuses to make a law respecting naturalization, a President who enacts it anyway, via “executive order”, or “administrative regulation”, or “administrative memo” by his underlings in the various executive agencies, is acting lawlessly. His unlawful acts should be nullified, and he should be removed from office for his usurpation.
b) Congress recently did not pass three sinister and grotesquely unconstitutional bills Obama wanted: “Card check“, “Cap and Trade“, and the Disclose Act. These bills are unconstitutional as outside the scope of the legislative powers granted by our Constitution to Congress. Nowhere does our Constitution give Congress authority to make laws about labor unions (“card check”), or to regulate carbon emissions – CO2, the stuff humans and animals exhale, and plants & trees need for photosynthesis (“cap and trade”), or requiring people with federal contracts to report their personal political activities to the Executive Branch (“Disclose Act”)!
Since Congress may not lawfully make laws on such subjects, no one can. Yet, Obama is circumventing the Constitution and implementing these three failed & unconstitutional bills by agency rulemaking or executive order!:
The National Labor Relations Board, is implementing “card check” by agency regulation. Read this.
The Environmental Protection Agency is implementing “cap and trade” by agency regulation. Read this.
And it appears that Obama – in furtherance of his “agenda” to reward his supporters and punish non-supporters – is considering signing an executive order to implement the Disclose Act. Read this.
So! Let us sum this up: The President must always uphold our Constitution. When Congress makes an unconstitutional law, the President must refuse to implement it; and he may, by means of executive orders, instruct people in the Executive Branch not to comply. E.g., if a President orders the U.S. Attorneys to decline to prosecute persons for possession of sawed-off shotguns, he would be acting lawfully because Congress has no authority to ban them. But the President is violating the Constitution when he implements “card check” by agency rules made by the NLRB; when he implements “cap & trade” by agency rules made by the EPA; and the “Disclose Act” by executive order, because the President and executive agencies (as well as Congress) do not have authority over these objects; and further, no one in the Executive Branch has authority to make “laws”!
What Should we do about illegal Executive Orders & Rules made by Executive Agencies?
A Congress filled with he-men and she-women, instead of ignorant cowards, wusses, and wimps, would impeach obama for his usurpations in signing unconstitutional executive orders, and in circumventing Congress by having executive agencies implement, by means of administrative rules, legislation which Congress did not pass. In Federalist Paper No. 66 (2nd para), Hamilton expressly states that impeachment is an essential check on a President who encroaches on the powers of Congress; and in Federalist No. 77 (last para), points out that impeachment is the remedy for “abuse of the executive authority”.
But since the people in Congress are too ignorant and weak to rid us of the abomination in the White House, the States and Counties must nullify unconstitutional executive orders and administrative rules, or submit to slavery and the destruction of our Constitutional Republic. Since State and County officials have taken the Oath to support the U.S. Constitution (Art. VI, last cl.), they are bound by Oath to refuse to submit to illegal executive orders and illegal agency rules.
And of course, WE THE PEOPLE and our businesses must also spit on such illegalities by the Executive Branch. Our “creature” (Federalist No. 33, 5th para, Hamilton), has turned into Frankenstein, and has lost all legitimacy.
This information was taken from the blog of: http://publiushuldah.wordpress.com/category/executive-orders/
To continue reading more on Executive Orders go to Publius Huldah’s site where tons more of Constitutional law is explained.