The problem with executive orders is that they’re often used to make, instead of just implement, law. So, instead of issuing new and different executive orders, Obama should not only fulfill his promise to dump the bad ones, but should also end this practice of using them to make new law, or to interpret existing law to enhance the executive’s power.
“There’s a lot that the president can do using his executive authority without waiting for congressional action, and I think we’ll see the president do that,” Podesta said. “I think that he feels like he has a real mandate for change. We need to get off the course that the Bush administration has set.” #
Executive Orders have the Power of Law?
According to Wikipedia, however, only those orders which are made in order to implement some act of Congress carry the weight of law. In other words, the only valid executive orders are those that Congress authorizes the President to make in order to implement law.
And this makes sense, because the only basis in the Constitution for an executive order is in Article II, Section 1:
The executive power shall be vested in a President of the United States of America.
and Article II, Section 3:
he [the President] shall take care that the laws be faithfully executed
Confirmed by Supreme Court
In fact, the Supreme Court ruled that President Truman’s 1952 order to place all steels mills in the US under federal control was invalid because it was an attempt to make law.
Combat the Unitary Executive!
How are we going to combat this trend toward the unitary executive? Unless you like being ruled by kings, and don’t mind regressing in time to before the American Revolution, executive orders as they’re used today are pernicious. Don’t let Obama get away with using the power Bush grabbed and pushing it even further!