Answer Man: What are limits on executive orders?

News-DemocratJune 21, 2014 

Q. Much has been made about all the executive orders that President Obama has been signing. What are the limitations on executive orders? It seems he is making laws without the approval of Congress. -- C.W., of O'Fallon

A. Did you ever stop to think what set the integration of the armed forces into motion in 1948? How the Federal Emergency Management Agency came into being? And, yes, what forced more than 100,000 Japanese-Americans into detention camps during World War II?

As you can probably guess from the nature of your question, they were all done through presidential executive orders.

Despite what some seem to imply, this is not some little-used tactic Barack Obama has pulled out of his hat to become a dictator. Every president from George Washington on has issued executive orders of one form or another. In fact, since they started counting them when Abe Lincoln established a provisional court in Louisiana on Oct. 20, 1862, presidents have issued 13,669 such orders as of Obama's latest last Monday.

And, if you want to know the truth, Obama lags behind Richard Nixon, Ronald Reagan and George W. Bush in issuing these edicts. In 5 1/2 years, Obama has signed 181 such orders, putting him on course for 263 by the time he leaves office in January 2017. By comparison, Reagan had 381, Nixon had 346 (even with an abbreviated second term) and the younger Bush wound up with 291. Even the elder Bush had 166 in his one term, more than Obama's first-term total of 147.

Of course, all of these pale in comparison with four-term exec Franklin D. Roosevelt. In dealing with the economic crises of the 1930s and early '40s, FDR issued 3,522 orders. Yet Theodore Roosevelt and "Silent Cal" Coolidge also topped 1,000 while Woodrow Wilson hit nearly 2,000 (1,803).

So what allows presidents to issue what some might consider dictatorial decrees? They say it's in the Constitution. No, you're right, there's no specific provision that permits them such latitude. Instead they point to this one small phrase in Section 3 of Article II: "(The president) shall take care that the laws be faithfully executed."

Presidents say executive orders sometimes are necessary to execute the laws that Congress has passed. Like the establishment of FEMA (E.O. 12148) under Jimmy Carter, such orders often allow the president's officers to implement provisions of various laws as well as the normal operations of the federal government.

They took a while to gain popularity. The first six presidents issued a total of 18. (Washington was tops with eight.) No president issued more than 100 until Ulysses S. Grant came up with 217. Then, after Theodore Roosevelt took his oath, it has been Katy-bar-the-door, some would argue.

Yet in the nation's history, only two such orders have been overturned. When Harry Truman issued Executive Order 10340 to place the nation's steel mills under federal control, the Supreme Court ruled it invalid because Truman was attempting to make law rather than clarify or further an existing law. Since then, presidents usually cite which existing laws they are acting under when issuing new orders.

Then, in 1995, an order by Bill Clinton went down in flames when he tried to prevent the federal government from contracting with organizations that had strike-breakers on the payroll.

As a result, the history of executive orders has been a mix of the good, the ugly and the ridiculous. Judge for yourself:

* Facing 25 percent unemployment and a stock market that had lost 85 percent of its value, FDR signed E.O. 7034 in 1935, establishing the Works Progress Administration. The WPA was ultimately responsible for building 600,000 miles of roads, 125,00 bridges and 8,000 parks.

* Battling division in his own party's ranks, Truman in the summer of 1948 issued E.O. 9981, which demanded equality in the armed services "without regard to race, color, religion or national origin." By 1953, 95 percent of all African-American service members were included in previously all-white units.

* Taking Truman's order one step further, Richard Nixon signed E.O. 11478, which banned all discrimination -- including disability -- within police, fire services and the U.S. Postal Service as well as the military.

* Knowing that the country might be adding new states later, Dwight Eisenhower issued E.O. 10834, which standardized the design of the U.S. flag. It made allowances for new states while ordering the layout of the stars, the height of each stripe and the shade of the blue background.

* On the down side, Truman also issued E.O. 9835, the so-called "Loyalty Order" that may have led to Joe McCarthy's Communist witch hunts.

* After the attack on Pearl Harbor, FDR issued E.O. 9066, which eventually denied Japanese-American citizens the right of habeas corpus and took them from their homes merely because they were of Japanese ancestry.

* In 2001, George W. Bush issued E.O. 13233, which restricted public access to the papers of former presidents. (After harsh criticism, Obama finally revoked it in January 2009 with his own E.O. 13489.)

* As for the silly, President Herbert Hoover on June 24, 1931, signed E.O. 5658, which offered tips as to the spelling, grammar, margin and size of paper that should be used when issuing -- ready for this? -- executive orders.

If you'd like to follow Obama's E.O. history, go to www.whitehouse.gov/briefing-room/presidential-actions/executive-orders for the latest. You can find a historic breakdown of orders at www.presidency.ucsb.edu. Also go to snopes.com for a refutation of some of the whoppers that have been spread about Obama's use of the E.O.

Today's trivia

What first lady played a Ziegfeld girl in the movies?

Answer to Saturday's trivia: The deepest hole ever dug was on the Kola Peninsula in northwestern Russia, where scientists spent 24 years drilling a hole 7.6 miles deep to study the Earth's interior. When they were forced to stop they had reached a rock layer 2.7 billion years old. Doing similar research, U.S. scientists quit after five years and 601 feet.

Send your questions to Roger Schlueter, Belleville News-Democrat, 120 S. Illinois St., P.O. Box 427, Belleville, IL 62222-0427 or rschlueter@bnd.com or call 618-239-2465.

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