By Virtue: Three Executive Orders that Shaped American Law
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By Virtue: Three Executive Orders that Shaped American Law


Ninety-six to ninety-nine percent of executive orders and proclamations
are going to be non-controversial. One really can’t, you know, say categorically
“Executive orders are good,” or “Executive orders are bad,” or “They tend to be legal,” or “They tend
not.” You just, you have to look at the facts. A lot of the times the claims against executive
orders are really claims against the presidency and the president’s powers in general. Just the order happens to be the way they’re
carried out. What really matters is the number, and it
may only be a handful, it may only be five that are illegal. That’s what defines whether a president is
abusing his or her authority. They’re nothing scary. They’re just the orders that presidents from
Washington on have just sent to his subordinates and the rest of the executive branch about
how to allocate resources, how to interpret their authorities, how to carry out the wishes
of Congress. The president may act pursuant to authority
that has granted him by the Constitution and granted to him by the Congress. The very first president, President Washington,
issued presidential orders, uh, from his very first years in office. So, it’s something we’ve always had in our
system. Oftentimes, executive orders, uh, are- are
issued during wartime. And the Civil War was no exception. And by virtue of the power and for the purpose
aforesaid, I do order and declare that all persons held as slaves within said designated
states and parts of states are henceforward and forever shall be free. So I think the Emancipation Proclamation is
probably the most famous and most important presidential order ever given. Uh, the Emancipation Proclamation is taken
during the middle of the Civil War. It’s issued in early 1863, and President Lincoln
says the slaves who are held in Confederate states are free. He first announced in the summer of 1862 to
his cabinet that he would issue a preliminary Emancipation Proclamation after a Union victory. He didn’t want to make it look like it was
a, an act of desperation. So after the Battle of Antietam in September
22, 1862, he issued the preliminary Emancipation Proclamation. Uh, President Lincoln essentially warned rebelling
states, uh, and rebelling areas that if they did not within, I believe he said 100 days,
uh, cease to be rebelling against the Union, uh, that their slaves would be deemed emancipated. And then there was the final Emancipation
Proclamation in 1863 where he essentially made good on those promises. Lincoln had authority primarily as commander-in-chief
to issue the Emancipation Proclamation. He did not try to free the slaves in the areas
where there was no combat or in the areas that were still loyal. But he also cited statutory authority.
Specifically, he cited Congress’ Confiscation Acts that they had passed in, I believe it
was 1861 and 1862. And so in the preliminary proclamation, uh,
President Lincoln referred to that and his constitutional authority. In the 1863 final proclamation, uh, he only
made reference to his constitutional authority, specifically his authority as commander-in-chief
to execute the war effort. Commander-in-chief normally can seize property
of an enemy if it’s being used to wage war against them. Was that, uh, the power that, uh, Lincoln
had? Well, it was never litigated because the Thirteenth
Amendment two years later was ratified. I think the Emancipation Proclamation set
a very important precedent which was that really is up to the president to make the strategic
and tactical decisions about how to win a war once it has begun. The precedent that the Emancipation Proclamation
set for future presidents was that they could act pursuant to their authority, legitimate
or not. And Congress would later back them up. And we had seen this oftentimes. But then when you get to the steel seizure
case, then it turns out to be a different matter. My fellow Americans, our country faces a great
danger. We are faced by the possibility that our steel
industry will shut down. This must not happen. President Truman in the middle of the Korean
War was faced by the prospect of steel production in United States shutting down. There was a labor dispute that was going to
lead to a strike and a shutdown, effectively a- a shutdown. President Truman had authority under labor
laws to order the steelworkers back to work, but that was opposed by the unions and the
unions were his allies, so, President Truman chose instead to purport to seize the steel
mills and order the, uh, manufacturers to employ the union members on terms that the
president set. An injunction was sought by one of the relevant
steel companies on the basis that this was an unconstitutional executive order, and their
main argument was that the president simply had no authority to issue it. They said the president doesn’t have statutory
authority to issue it, and he doesn’t have power, um, independent constitutional power
to issue it. Truman’s rationale for seizing the steel,
uh, industry was rooted in his commander-in-chief authority. What the Supreme Court ultimately said was
that power doesn’t stretch all the way to reordering the fundamental economics of the
domestic economy back on the home front. And the Supreme Court, six-to-three, found
that the president had exceeded his authority. There was a majority opinion by Justice Black
that was pretty straightforward. The majority opinion essentially said, “Look,
Congress makes the laws, the president executes them. There’s no statutory authority for this.” The most famous opinion to come out of Youngstown,
interestingly, is not the majority opinion, nor is it the dissent. It’s actually a concurrence, uh, by Justice
Jackson. And in the concurrence, Justice Jackson, uh,
essentially agreed with what Justice Black said, but he also laid out a framework. In which he distinguished three scenarios. The first scenario, uh, is the one in which
the president acts consistent with what the Congress either explicitly or implicitly has
authorized. There, his power is at its zenith. The second scenario is where the Congress
has not acted and the president does, uh, in a way that it may be open as to whether,
uh, he has, uh, the authority. There, it’s the middle ground. The third scenario is where the president
acts contrary to the express will of Congress. There, his authority is at its nadir. But as much as scholars admire Justice Jackson’s,
uh, three-part framework, the devil’s in the details of applying it because a president
is almost always going to say he has constitutional authority. It was an oversimplified framework, but nonetheless,
I think the simplicity makes it, um, a very attractive starting point for analyzing executive
actions. On the other hand, there’s another stream
of case law where the Court will say, “Is this a- a- function that lies within the executive
power?” If so, then the president is relatively free
to exercise it, subject to the Bill of Rights. And so you have this conflict. Uh, unfortunately, I think that leads to uncertainty
where presidents and Congresses don’t really know what the outer limits of authority are. Most of the time, that doesn’t matter. But whether you have crisis and emergencies
where the government needs to respond quickly, it’s bad to have that kind of uncertainty. I, Ronald Reagan do solemnly swear. I, Ronald Reagan do solemnly swear. That I will faithfully execute the office
of President of the United States. That I will faithfully execute the office
of President of the United States. Every president since Carter has issued an
executive order on how regulations are to be reviewed, um, through the office of Management
and Budget. Particularly through the Office of Information
and Regulatory Affairs, which is known as OIRA. Um, President Reagan’s executive order on
regulatory review was the most sweeping. What President Reagan did was, uh, much more
aggressive and much more forceful than previous administrations. And so President Reagan came in and he said,
“All major regulations have to be approved by the Office of Management and Budget before
they can be released or OMB can send them back to the agency for more explanation and
review.” Pursuant to authority Congress had issued
in the Paperwork Reduction Act and the creation of OIRA, President Reagan imposed these cost-benefit analyses. And it led to a substantial reduction in the
number of regulations during his administration. This kind of executive order was very controversial
in the day of, and- and it, and it was challenged the courts but I think has ever since become
part of the presidential toolkit. People have come to realize that Reagan was
not only within his rights to require centralized review but almost required to do so. And every president since then has followed
his lead. The Reagan approach continues to loom large. Um, no subsequent president really disavowed
it. Um, they, you know, tinkered around the edges
but not surprisingly, presidents liked to have enhanced power over the regulatory state. I think that’s been good for the country because
it means that agencies are not wasting time, they’re not conflicting with each other, not
pursuing individual agendas, uh, that are at odds with the person we elected to head
the executive branch. The worry is that the administration perhaps
behind the scenes, um, will use this power to effectively override the expert judgments
of the administrators to whom the power to make the rules is actually delegated by statute. And so in order to take care that the laws
are faithfully executed, which is the president’s constitutional duty, he has to issue orders,
regulations that execute the powers delegated to him by Congress. The question really is how is that done, right?
Is it done in a way that entails unilateral lawmaking as opposed to law execution? Um, is it done in a way that purports to be
carrying out statutory law but that massively stretches, uh, statutes beyond recognition? The framers set up the Constitution in such
a way that it would be difficult to pass legislation. All of this was to make it difficult to expand
government. And so if you can make an end run around these
limits through executive directives, then you have expanded government in a way that
the Constitution does not contemplate or authorize. There’s nothing problematic about the president
using a writing, using a directive to issue a proclamation or an order. We should just focus on those that are particularly
problematic, that might be illegal, and especially those that have direct effects on people outside
the government. And I think this also brings us back to the
example of the Emancipation Proclamation. Even if we treat that as having been absolutely
valid under those circumstances, those were extraordinary circumstances. And I think we really need to think very hard,
um, before we justify some action taken in a very different context on the basis that,
you know, Lincoln did it in the Emancipation Proclamation. The courts have rightly upheld some executive
orders, wrongly upheld some. There are some great lessons in American history
from presidential use of their executive order and proclamation power.

8 Comments

  • Liberty Smith

    The People need Laws to Protect their Rights from Government! How about LAWs with a Mandatory Minimum for the Government Violating a Citizens Civil Rights… 5 Years in Prison and 1M Fine for each rights violation/stacked charge plus all attorney fees and expenses!

    Welcome to the United Police States of America… Oligarchy Police State… USSA! Bend over Sheeple the Government has a surprise for you… the Giant Red White and Blue Government/Tax/Police/SPY/Gun Control/Censorship/Warmongering Weenie! PACIFICATION BY FORCE! You will Comply or DIE!

    The US Cops are nothing more than Lying Coward Thug Domestic TERRORIST with badges! Blue ISIS!

    There is No Better "SLAVE" than a "SLAVE" that thinks he is “FREE”! Take Back Your "Rights" and your Government! End the Police/Deep State and Make the US Constitution the "Law of the Land" again!

    Wake Up Sheeple… you are not Free! It is all an Illusion to keep you under control! That should make you so proud… stand up tall and march down Main street Waving Old Glory and singing the Star Spangled Banner! Baaa Baaa Baaa

    According to Our Government: Spying, Violence, Lying, Extortion, Theft, & Corruption of Any Kind is Unacceptable in our Society… Unless the Spying, Violence, Lying, Extortion, Theft, & Corruption is Perpetrated by the Government!

    Home Grown State Sponsored Terrorist Groups – Congress, Judges, Prosecutors, FBI, CIA, NSA, NRO, NGA, TSA, DEA, DHS, BLM, EPA, IRS, State & Local Police, etc!

    The Government Taketh your Income, and Taketh your "Rights" Away, blessed be the name of the Government! Wake Up Sheeple… you are not Free!

    The Government cannot Legislate Morality, Security, or Safety… It does not Work! Law Abiding Citizens just lose "Rights"! Are you prepared to Lose more of your "Rights" and Expand the Police State!

  • DefinitelyNotDan

    If one is smart and intelligent enough to look past the particular aspect of slavery, which could have been easily disposed of in many different ways, you will invariably come to understand that the Emancipation proclamation, was the most illegal and unconstitutional order ever given, regardless of being declared the most important one . That’s all you really need to know about the source and origin of the constant crumbling of the USA and the Constitution from that time on when the civil war put the final nail in the American coffin.

    In case it is not clear, simply replace slaves with any other property, maybe a Repossession Proclamation that declares all houses and lands property of the Federal government, to get a better understanding for how damaging and vile and communist the emancipation proclamation was.

    It’s like Trump declaring all digital currency invalid … boom … your bank account doesn’t exist anymore.

    The best part about it, is that all the smart people never figured out that physical slavery was replaced by financial and judicial slavery. Soon after they pushed the income tax .… clank … the first shackle gets slapped on. Then they increased the income taxes ever more with every year … clank … the other shackle gets slapped on. The. They take even more of your income to give it to others against your will and to increase the profits and power of the elite .… clank … the first leg shackle gets slapped on. The. They start taking even more of your money and giving it to foreigners .… clank … the second leg shackle is slapped on. Then they deprive you of your freedom of anonymity from the government through a mass surveillance state, they track everything you do and who you do it with, and they arrest and pollute your freedom of free speech and they attack your freedom of defend yourself and they the. Import foreigner by the millions to corrupt democracy and pollute your communities and frack the middle class and deprive you of your inalienable rights. And so they slip the noose around the neck of the financial slave.

    They figured out a long time ago that it’s just too much work and costs too much and not as profitable to have small groups of physical slaves, when you can enslave the whole population just a little bit and keep adding more slaves by importing people against the will of the previous slaves. But who cares what the slaves want who used to be citizens.

  • hecke1959

    Your life is going one day and all of sudden you have no money to support yourself anymore. The ones who really ended up being victims in all this was slaves,who did not have the means to support themselves. My grandmother's great uncle and many more came back from the civil war only to find everything they worked for stripped away or burned to the ground.

  • Proud Deplorable

    Ok nice theories but what about the most important EO ever drafted? EO 11110. This is what got JFK shot. A version of this got Abe Lincoln shot. This can eliminate federal income tax. This is what all this bs fighting in the Main Stream Media, the deep state, and the funding of every terrorist organization is about. Why is the "Federal" Reserve private? Why? To enrich the deep state and all those who support this horrendous system.

  • Сымон Купала

    I agree that US president should have the right to pass acts having the force of law.

    However, US Constitution doesn't give to the Statian president a force to make orders equal laws. That means Statian presidents violate the Constitution in this way.

    I also believe that since the US presidents have the right to make laws, political system of USA is the same with absolute monarchy and dictatorship.

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