Constitution Corner: Executive Orders and Actions

By Douglas V. Gibbs

President George Washington was the first President of the United States to issue Executive Orders. Among Washington’s Executive Orders was the Thanksgiving Proclamation. Lincoln’s Emancipation Proclamation was an Executive Order. So, too, is the National Day of Prayer. Executive Orders historically hold no power of law. They are supposed to be “proclamations,” or adjustments to rules or internal structure regarding the Executive Branch.

Article I, Section 1 of the U.S. Constitution reads, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.” This first sentence of Article I, as well as the beginnings of Articles II and II, where all executive powers are granted to the President, and all judicial powers are granted to the Supreme Court, and the inferior federal courts, support “Separation of Powers.”

In order to protect the United States against collusion between the parts of government, the authorities granted by the Constitution are divided and distributed based on the needs of government. Therefore, all legislative powers belong to the Congress. Based on that constitutional distribution of power, that means that anytime the courts, or the President, act legislatively, the judicial or executive action is unconstitutional.

Executive Orders, based on the constitutional reality that all legislative powers are granted to Congress, cannot legally modify or create law. Anytime a President uses an Executive Order, or takes an executive action, to make such modifications to the law, he is acting against the powers granted by the Constitution. He is also expected, according to Article II, to faithfully execute all of the laws of the United States, not pick and choose which laws to execute.

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