Executive orders
President Barack Obama’s use of executive orders is in line with recent presidents.
Barack Obama (2009-to-Jan. 2014): 168
George W. Bush (2001 to 2009): 291
Bill Clinton (1993 to 2001): 364
George H.W. Bush (1989-1993): 166
Ronald Reagan (1981 to 1989): 381
Jimmy Carter (1977 to 1981) : 320
Gerald R. Ford (1974 to 1977): 169
Richard Nixon (1969 to 1974): 346
Source: National Archives
President Barack Obama’s willingness to unilaterally change policies has provoked a struggle with congressional Republicans who contend the president has arbitrarily exercised power to thwart the will of lawmakers on Capitol Hill.
Ohio Sen. Rob Portman, R-Ohio, has gone so far as to say that Obama’s delay of the employer mandate in the new health law is “illegal.’’
But in reality, Obama and Congress are engaging in a re-run of a struggle over what exactly a president can do, prompting Peter Shane, a professor of law at Ohio State University to say that the Constitution “vests the president with executive power. We’re now on our 230th year of debate on what that exactly means.’’
Many legal analysts believe that Obama is behaving like any other president. Obama’s actions have been “entirely consistent with past presidents and the complaints that are coming are almost without exception based on partisanship, which is not to say there are no principled objections you can make on reliance on presidential power,’’ said Kenneth Mayer, a professor of political science at the University of Wisconsin.
“If the president had an R after his name, the Democrats would be the ones saying he was the one shredding the constitution,’’ Mayer said.
According to the U.S. Constitution, the president of the United States “shall take care that the laws be faithfully executed.’’ There is no mention of executive orders or presidential proclamations.
Yet presidents have exerted authority without congressional approval since the days of George Washington.
In 1793 Washington signed a proclamation asserting neutrality in the war between France and Great Britain. During his 1823 annual message to Congress, James Monroe announced the doctrine bearing his name that prohibited Europe from establishing colonies in South America.
Abraham Lincoln signed the Emancipation Proclamation in 1863 ending slavery in the South. And in 1942, Franklin D. Roosevelt issued Order 9066, which provided the legal basis for the government to intern Japanese Americans in special camps.
With less than three years left in his presidency, Obama has issued 168 executive orders, a pace roughly equal to his Republican predecessor, George W. Bush, and behind the rate set by Democrat Bill Clinton. Republican President Ronald Reagan had the most executive orders in recent presidencies, with 381 during his eight years in office.
The furor by Republicans erupted during the past few weeks, after the Obama administration said Americans could keep their insurance policies for another two years even if they don’t meet the minimum requirements of the new health law, while delaying until 2016 a mandate that small companies offer coverage to their workers.
In a White House ceremony last month, President Barack Obama also signed an executive order requiring federal contractors to pay their workers even though Congress has refused to raise the minimum wage, telling the audience that “wherever I can act on my own without Congress…..that’s what I am going to do.’’
Historically, presidential orders have ranged from the sweeping to the mundane — from President Harry Truman de-segregating the armed forces in 1948 to President Woodrow Wilson ordering an end of “the use’’ of roller towels in federal buildings by more than one person.
While presidents have issued proclamations and orders that have the same impact as a law, some question the legal basis for some of Obama’s actions.
“If you look at just executive orders, I don’t think he has been particularly more aggressive than prior administrations,’’ said Jonathan Adler, a professor of law at Case Western University in Cleveland. But, Adler added, “some of the actions the administration has taken with the health care law, I think it’s hard to argue with a straight face they have the legal authority to do it.’’
Presidents normally get away with exercising strong authority. A 2013 report by the non-partisan Congress Research Office concluded that Americans could file a civil suit against the administration for not enforcing sections of the health law, but that “reviewing courts have (largely) deferred to the judgment of’’ of the federal agencies.
In 1952, Truman nationalized the steel industry during a strike, a move that the U.S. Supreme Court struck down as unconstitutional, while Congress in 1974 prohibited President Richard Nixon from impounding money that lawmakers had appropriated.
“It doesn’t happen that often,’’ Mayer said.
In 2006, however, the U.S. Supreme Court ruled against the administration of President George W. Bush, which claimed that the nation’s clean air laws did not require the U.S. Environmental Agency to curb emissions of greenhouse gasses.
Writing for the majority in that case – Massachusetts v. EPA — Justice John Paul Stevens concluded that “while the president has broad authority in foreign affairs, that authority does not extend to the refusal to execute domestic laws.’’
Pointing to that case, Adler said: “In some cases, Congress is very clear when certain things are supposed to take effect and the administration doesn’t have the authority to say, ‘Well gosh, this isn’t working out the way we wanted, so we’ll do it differently.’ ’’
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