The Use and Abuse of Executive Orders and Other Presidential Directives
Gaziano, Todd F., Texas Review of Law & Politics
In recent years, there has been a renewed interest in the proper use and possible abuse of executive orders and other presidential directives. A driving force behind this increased interest has been the concern expressed by many citizens and lawmakers over the content and scope of several of President Bill Clinton's executive orders and land proclamations.1 Congress has responded to this concern by holding hearings and considering several bills designed to curb the President's authority to issue such directives.2 In an exceedingly rare act, the courts recently joined the fray by striking down one of President Clinton's executive orders.3 Litigation to contest the validity of other directives is ongoing.4
Despite the increased public attention on executive orders and similar directives, public understanding of the legal foundation and proper uses of presidential decrees is limited. Thus, the increased public attention generally has been accompanied by confusion and occasional misunderstandings regarding the legality and appropriateness of various presidential actions.
Such confusion stems in part from the fact that the President's authority to issue such directives is not expressly set forth in the Constitution and its boundaries are still somewhat unclear.5 Accordingly, it is probably not possible to provide a simple recitation of the governing law or prudential guidelines that apply to presidential directives. However, it is possible to discern and describe a legal framework of analysis that courts have used to help determine issues of validity. Beyond questions of legality, there are many separate but important issues of policy. Two broad policy questions also present themselves: (1) whether a given power the President possesses ought to be used to advance a particular policy objective, and (2) whether a particular draft directive effectively advances such a policy goal.
This article seeks to illuminate the above policy questions as well as to supply a legal framework of analysis for judging questions of validity. First, it addresses the source of current popular confusion by providing a general over-view of the President's use of executive orders and other presidential directives. To that end, it presents a discussion of both historical practice and of the sources of presidential authority. Second, it sets forth a legal framework of analysis for testing the legitimacy of a given executive order. Third, using both historical examples and examples from the Clinton administration, it presents a set of criteria for determining when an otherwise legal order might nevertheless be improper as a matter of policy. Finally, it discusses a number of reforms related to the use and abuse of presidential directives.
II. THE SEPARATION OF POWERS
There can be no liberty where the legislative and executive powers are united in the same person.
Charles-Louis de Secondat, Baron de Montesquieu6 The accumulation of all powers, legislative, executive, and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny. -James Madison 7
One of the great and enduring gifts from the Founders' generation was the inclusion of separation of powers principles in the United States Constitution. The Framers studied the writings of Montesquieu and other political philosophers as well as the workings of the separate branches of their own state governments.8 Their conscious design to enforce this separation of functions was carefully explained both in The Federalist Papers and also during the debates over ratification of the United States Constitution.9 The separation of powers is now enshrined in the Constitution, implicitly in its structure and expressly in the provisions of Articles I, II, and Ill.10
Any discussion of the proper scope of executive and congressional authority requires a basic understanding of this concept of the separation of powers. …