Administrative Policy Tools - Executive Orders Flashcards
Executive Orders - History
- George Washington issued the first one
- FDR issued the most (4 terms, over 3,500 EOs)
- Woodrow Wilson issued second-most
Actions That Have Been Done Through EO
- suspending the writ of habeas corpus
- desegregating the armed forces
- barring discrimination by federal contractors
Overall point was that EOs have been used to do some pretty big things -> can’t judge the authority by the size of the action
Categories of What President Does Through Executive Order
- regulating federal employees
- if there’s a statutory hook, can get agencies to regulate behavior of private actors
- organizing the executive branch (ex: OIRA was created by executive order)
- create commissions
- coordinate among executive branch agencies
- policy-making internally - setting priorities for cabinet agencies (line on how directive President can be)
EOs and Private Actors
Pres can issue EOs to impact behavior of private actors (though these tend to be the most controversial ones)
- procurement often carried out through Executive Order
- statutes sometimes provide a hook for regulating private actors by executive order
Youngstown - Factual Background
- US in middle of Korean War
- US Steelworkers Union - very powerful at the time, about to go on strike
- before the strike, Truman issues EO saying steel indispensable to the war effort (would impact national defense) + seizes control of steel mills
- Pres does notify Congress next morning + again 12 days later, but they don’t respond
- steel companies comply, but sue (say action not authorized by statute or Constitution)
Youngstown - Aggregate Power
- President Truman had tried to argue in part that the authority he invoked was within his aggregate power as the chief executive under the Constitution
- Prof noted in class relevance of dire circumstances to the aggregate power argument - concept that on some level, might expect President to have power to address emergencies
- powers of Commander in Chief + Article II Take Care power
- Court ultimately doesn’t buy this though - can’t bundle together to create a new power
Youngstown - Jackson Concurrence
- Prof said this = clearest articulation for assessing validity of Executive Orders
- Prof also noted his “art of governing” passage - concept that the way the Pres exercises power will be influenced how other branches exercise their power
Youngstown - Jackson Level 1
- Congress has expressly authorized something -> Pres power at its max
- President acting pursuant to express or implied authorization of Congress
- power includes all Presidential power plus everything Congress can delegate
Youngstown - Jackson Level 2
- Congress is silent - “zone of twilight”
- Pres needs to rely on own power, but may be area in which Pres + Congress both have power + Congressional quiescence may enable/invite Pres action to determine where the lines between these powers lies
- Congressional inertial, indifference, or acquiescence may sometimes enable (if not invite) measures on independent presidential responsibility
Youngstown - Jackson Level 3
- Congress has spoken against what Pres is doing
- “lowest ebb” - can rely only on Presidential Constitutional powers minus any constitutional powers of Congress over the matter
- SCOTUS can sustain exclusive Pres control in such a case only by disabling Congress from acting upon a subject… Presidential claim to a power so conclusive + preclusive must be scrutinized w/ caution bc equilibrium of our US Constitutional system is at stake
Youngstown - Which Category?
- 3 - Taft-Hartley Act says what happens in labor management relations, + there’s already leg on when fed gov can seize private property for public interest
Youngstown - Jackson’s Concern
- thought monarchy if Truman prevailed - all exec power of which gov capable in Pres, allow Pres to use military + domestic affairs to seize power
Youngstown - Advice to Congress
- Prof noted Jackson emphasizes Congress should act in emergencies so President doesn’t feel the need to grab more power
- need to be “wise + timely” in meeting problems
- only Congress can prevent its own power from slipping through its grasp
Youngstown - Black Opinion
- opinion of the court
- argued Pres power must come from act of Congress or US Constitution -> no power here b/c contradicting Congressional statute, + determined exceeded Constitutional power
Youngstown - Frankfurter Concurrence
-Issue before us can be met without attempting to define President’s powers comprehensively
-Congress expressed its will to withhold this power from president
