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Episode 43: Executive Orders

July 18th, 2014

Episode 68 of 279 episodes

House Speaker John Boehner, the country’s most powerful Republican, says he’s going to sue President Barack Obama on behalf of the Congress for alleged misuse of executive orders. Is Boehner's threat more of the same partisan Washington theater or a real constitutional crisis? "The House leadership is scrambling so hard to try to reassert some kind of actual leadership, that it’s I think awfully hard for most Americans to see really this in serious way as the Congress trying to defend its authority," says political science professor Phillip J. Cooper of Portland State University, and author of “By Order of the President -- Use and Abuse of Presidential Direct Action.” Cooper points out that Speaker Boehner doesn’t have the authority to sue on behalf of Congress without a vote authorizing him to. These facts make it more likely that the would-be constitutional crisis will likely be reduced to a congressional kerfuffle. But there are important questions at play here. On this week's podcast we ask, what are executive orders for and what can the president do with them? What’s considered out-of-bounds? Most importantly, why should we care? Executive orders are written directives from the President of the United States to government departments and agencies. They detail how the law is to be implemented, often specifically citing the legislation the president is enacting. Other executive orders are based on the president’s general constitutional mandate to “take care that the laws be faithfully executed.” Every president back to George Washington has issued Executive Orders. (Well, OK, the nation’s ninth president, William Henry Harrison, died in office before he could get around to issuing one, but most historians ignore this blip in the data.) In the last century, most presidents’ orders have numbered in the hundreds. And the vast majority of them deal with mundane, unremarkable policy actions. The president might create a commission to study and combat organized crime, or mandate new protections for small business owners. But from time to time, executive orders have been used to mandate government action that has much broader social impact - think Abraham Lincoln’s Emancipation Proclamation which freed southern slaves by executive order or many of Franklin Delano Roosevelt's New Deal programs which were established through executive orders. More recently, George W. Bush established the prison at Guantanamo Bay, Cuba, through executive order. Presidents run into problems when they cross the line between executing existing laws, and crafting new ones. That’s what John Boehner accused Barack Obama of doing when the president delayed the enacting of portions of the Affordable Care Act by a year. Boehner’s threatened lawsuit over that executive order is what’s causing the aforementioned Congressional kerfuffle. But before you decide to ignore the issue altogether, remember this, says Professor Cooper: “A Constitutional republic is supposed to operate under the supremacy of law. No man is so high he is above the law.” If we don’t keep a critical eye on how the president uses executive orders, he or she could slip into the habit of creating new laws rather than enacting existing ones passed by Congress. Cooper reminds us, “Democracy is in the details,” and “there have to be some boundaries out there on power.”

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