Punchinello’s Chronicles

January 21, 2009

Presidential Executive Orders

Filed under: Word of the Day — Punchinello @ 6:08 pm
Tags: , ,

On the first day following the 2009 inauguration of President Obama, we see in the news that the new boss is hitting the ground running, so to speak. We hear about a wage freeze for employees within the White House, along with a freeze on all military tribunals in Guantanamo Bay military prison. What’s interesting is that the report also tells us that much of this is being done by either executive order, or through regulations.

So the question is, how much authority does the president have through executive orders? What, if any, are the limits? What exactly is an executive order?

Another question, perhaps even more interesting, is how protected is the Constitution of the United States? This is the fundamental document upon which all laws and rules, controls and authorities rest. We already know that Barack Obama has views that the Constitution may be too limiting, preventing “what needs to be done” by putting limits on the power of government. As it should.

America is almost unique in history in that the country is formed under a premise that the citizens (the people) have more authority than the government. The Constitution and ancillary papers, particularly the Bill of Rights, specify what is “allowed” to the government. Almost all other nations have been formulated in terms of what the people are allowed to do under an all-powerful government.

It turns out that there is no Constitutional authority for executive orders, other than some general (very general) terms. Article II, Sections 1 and 3, vaguely authorize the Executive Branch (the President) the executive power to “take Care that the Laws be faithfully executed.”

In 1952, according to Wikipedia, the Judicial Branch (Supreme Court) overruled Harry Truman’s executive order wherein he tried to nationalize the entire steel industry and place it under federal control. The decision hung on the principle that the order attempted to make a new law; that there was no existing congressional law that the order was to support or clarify.

Basically, the “interpretation” is that the President has the authority to issue clarifying or specifying orders that are “meant to” help in the actual implementation of laws. Those laws are passed and approved by both the Congress and the Executive Branch. In other words, Congress passes a law which then may be finally approved or vetoed, and so forth.

What it comes down to is exactly the argument that many conservatives have today with the Supreme Court. When a crime takes place there’s a trial. Depending on the outcome of that trial, the verdict can be appealed all the way to the United States Supreme Court. When that court makes a decision, the publication of that decision becomes a precedent. At that point, the decision effectively becomes a law, or part of the body of law. All this without Congress passing any kind of law.

Many of our regulations today, rules and ordinances, have come to us by way of the Supreme Court. Those justices are NOT elected, they’re appointed by the President, then certified through Congress. When appointed, they remain in office for life, retiring at their own option. Only in the event of serious crime can a justice be impeached, and it’s almost never happened.

Because the Supreme Court is the final body of authority, ruling on what is or isn’t allowed under the Constitution, nothing at all prevents that court from essentially creating new law! Conservatives stand for a “strict” interpretation of the Constitution, where liberals stand for a “progressive” interpretation. Neither stand matters much, given that nobody can stop the Supreme Court from doing whatever the hell it wants.

Now we have a president who may choose to issue executive orders that exceed the authorities of the Executive Branch. What possibly could stop that?

From what I see, the only option is a lawsuit where the people of the United States, in some group or form, appeal to the US Supreme Court to overturn or cancel or otherwise stop that order. That’s what happened in 1952, when the courts ruled that Truman was not allowed to take over the steel industry.

That being said, we have in place a situation where a legal action cannot be brought against the United States government without the Supreme Court first deciding if the principals have legal “standing.” In other words, before anyone at all can sue the government regarding an executive order, the Supreme Court gets to decide if those persons even have a right to bring the suit!

But what happens when the court justices are on the same page as the president? Suppose in 2009 that Obama issues an executive order to nationalize the airline industry, claiming that it’s vital to the US economy? Or perhaps the automotive industry, claiming that the dire straits of the economy cannot support the loss of those industries? What then?

There might (possibly, depending on the outcry) be a case brought before the Supreme Court. However; this time, with a court pretty much in agreement with the political and social agenda of Washington, a simple ruling is all that’s necessary for this nationalization to happen.

The problem is that the president can first issue an executive order, and only afterwards are we (the people) left with any recourse to terminate that order. During the active period of that order, irrevocable damages can take place. Regardless of what’s the outcome of a Supreme Court decision, we may not be able to recover from the damages.

And where does the “Fourth Estate” come into all this, the wonderful “news media?” Suppose we have a general “feeling” within mainstream journalism that perhaps socialism isn’t such a bad thing? What if the primary sources of news across the country “feel” that whatever the president wants through an executive order would be “for the good of the people?”

For the moment, the Internet offers wide-open free speech. Individual bloggers, online news sources, and just about anyone who can read and write has the option of making a point. It may be read, maybe not, but at least there’s the option of someone speaking out. What if the “Fairness Doctrine” in some new iteration steps in and begins to control the content within the Web?

How come we’re not hearing anyone in mainstream journalism discussing these executive orders? Not only in terms of what they say, but in terms of where are the limits? Bill Clinton ordered that nobody should be allowed to drill for oil off the shores of the United States. That was an executive order. Then George Bush rescinded that order this past fall, under the pressures of $4/gallon gasoline.

Following that, more than 150 applications to drill were put forward only to be met with lawsuits and injunctions. Once again, the legal system was able to override the executive decisions by the government. Much of that prevention was aided and abetted by Congress, with liberal Democrats and “moderate” Republicans accepting the freeze.

We’re about to enter into a period of history where nothing at all stands in the way of a liberal agenda. First, the majority of the population wants some form of socialism. People have often said that if America ever becomes a dictatorship it will be because the people have voted for it. Secondly, liberal Democrats now control the Senate and the House of Representatives.

Although there technically may not be a majority in Congress, with the numbers being so close, it’s likely that many laws and decisions will face only a rubber stamp. As a couple of justices step down, Barack Obama will have the option of appointing whomever he (and his party) chooses, with congressional hearings being only another rubber stamp.

Finally, with a generally biased news media, we may or may not hear about anything at all taking place. With no particular conspiracy, but only a “general feeling” as to what makes news or “isn’t interesting,” the public has limited information about what’s taking place. Why would there be a public outcry over federalization of private industries if nobody hears about it?

Conservative talk-radio hosts have been at the forefront of such things as the nationalization of health care and the cancellation of immigration law. For the moment, that’s been sufficient to generate enough voter anger that congress backed down. But if a re-implementation of the Fairness Doctrine acts to muzzle those radio hosts, what then?

Woody Allen has a great bit that begins with, “what if one morning we all woke up…in the dry-cleaning business?” A far more scary proposition is, what if one morning we all wake up and discover that we live in a totalitarian state!


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