Executive Orders and the Constitution

By Douglas V. Gibbs

Executive Orders are not mentioned in the U.S. Constitution. Many believe that executive orders, in addition to the functions of modifying how an executive branch department or agency does its job (rule change), or to issue a proclamation, can modify existing law. Modifying law, however, would need to accompany the authority to make law, and that authority rests solely with the Legislative Branch. Therefore, any executive order that modifies the law is unconstitutional. Article I, Section 1 of the U.S. Constitution grants to the Congress all legislative powers, therefore, the Executive and Judicial branches cannot make law, repeal law, strike down law, or modify law. Only Congress can.

Executive Orders are nothing new, for George Washington issued several Presidential Proclamations. Executive Orders and Proclamations, once again, are not law, but they do sometimes have the effect of statutes. A typical modern Proclamation might declare a day to be in someone's honor.

The Emancipation Proclamation had a broader effect, but did not free the slaves. The Emancipation Proclamation was not a law. It was a proclamation. It did change the course of the war, proclaiming the Civil War to be all about slavery, which encouraged the European Nations to step back in regards to their support of the Confederacy.

In line with that, we have often seen Executive Orders instruct the government to do no business with a country we are at war with. Executive orders are subject to judicial review, and can be declared unconstitutional. But since the executive orders hold no power over law, we can simply refuse to follow unconstitutional Executive Orders if we wish. Congress can refuse to follow Executive Orders that modify law, as well, since the Legislative branch alone is tasked with making law. Problem is, Congress has not been functioning in accordance with the U.S. Constitution, and has been allowing the Executive branch to wield more power.

This is why November is so important. We need to make sure that we vote into Congress representatives that understand the U.S. Constitution, or else Obama will continue his attempt to make Congress irrelevant, and will continue to pursue a course of making the Executive branch more powerful than our Founding Fathers ever intended it to be.

-- Political Pistachio Conservative News and Commentary