Executive Orders and Presidential Prerogatives

February 05, 2011
By Zbigniew Mazurak

Some conservatives, including AT news editor Ed Lasky, are worried that despite the election of a Republican-dominated House and six new GOP senators, Obama will continue to advance his extremely liberal agenda -- but this time, by executive fiat rather than by congressional law.

Mr Lasky wrote:

He has already received his marching orders from the Center for American Progress (CAP) -- called his "Ideas Factory" by TIME and his "Policy Font" by Bloomberg News.   After the shellacking, the CAP released a report calling for Obama to rely on increased use of executive powers to push his agenda (and ignore the wishes of the American people and the role of the newly constituted Congress):  "Executive orders, Rulemaking, Agency management, Convening and creating public-private partnerships, Commanding the armed forces, Diplomacy."

As Mr Lasky reported, the CAP's Michael Waldman has claimed the following:

[L]ike all presidents, he has a bulging toolkit: executive orders, regulations, spending decisions, the bully pulpit and more.  Obama has lots of power, and he should wield it[.] ...

Consider energy policy, where congressional gridlock seems inevitable, with many conservatives insisting climate change is a myth and taxes are a nightmare.  The Center's experts say Obama could impose a $2-per-barrel fee on imported oil with proceeds steered toward energy research.

Essentially, the CAP has claimed that Obama is an omnipotent king who can issue any edict he wants to on any thematic issue.  The good news for America and its people is that the CAP is flat wrong.

Obama is not an omnipotent dictator, and he doesn't even have a "bulging toolkit."  Like all of his predecessors, he is a president with only limited prerogatives, according to the U.S. Constitution.  And it is the Constitution, not Obama or the CAP, that determines what a U.S. president is allowed to do.

Obama has no prerogatives except those explicitly granted to him by the Constitution (specifically, by its Article II).

As explained (inter alia) in this constitutional primer, the prerogatives of the entire federal government are thematically limited to a discrete group of thematic issues.  On top of that limit, the President of the United States is limited in terms of what he can do about them.

So what about that "bulging toolkit"?

Executive orders and regulations issued by the president are law for no one except federal executive agencies.  Only the Congress can make law for anyone else.  So any executive orders or regulations are not law for you unless you work for one of these institutions.  The same applies to any executive regulations imposed by executive agencies such as the EPA.

Fees on imported products?  Again, only the Congress can impose them.  The exclusive prerogative to impose any duties, taxes, or imposts is reserved by the Constitution for the Congress.  And under the nondelegation doctrine, one branch of the federal government cannot delegate its prerogatives to another.

Spending decisions?  Again, they are for only the Congress to make.  The president can only request budgets, and if he deems whatever appropriations the Congress enacts insufficient or excessive, he can only veto them entirely (not partially -- he does not have a line-item veto right, which the SCOTUS declared unconstitutional).

What about the president's prerogatives as commander of the U.S. military?  The answer can be found in the Constitution and in Federalist #69:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it.  It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy, while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies -- all which, by the Constitution under consideration, would appertain to the legislature.

The president is the supreme commander of the military, but he doesn't decide military spending levels, the Armed Services' size, or which countries the U.S. wages war with.  As James Madison clearly stated, you're not allowed to go to war without a declaration of war -- and that is the Congress's prerogative.

The Executive Branch can't even unilaterally retire certain categories of ships and aircraft.  It has been forbidden to do so by the Congress.

Article 1, Sec. 9 of the Constitution says that "[n]o money shall be drawn from the Treasury, but in Consequence of Appropriations made by law."  Obama cannot determine spending levels unilaterally.  And if he vetoes Republican-proposed spending reductions...fine.  The government will receive no funding, then, which means that Obama will get no budget at all instead of a small budget.

Moreover, according to the Constitution, the Congress has the prerogative to 1) raise and support armies; 2) provide and maintain a navy; 3) provide for the "common defense"; 4) make regulations for the military (such as the former DADT law); and 5) to "define and punish ... [o]ffences against the Law of Nations."  In other words, the Congress regulates the military and makes law for the Executive Branch, and the latter obeys that law.  And not only does the president swear an oath to support the Constitution, but he also is commanded by it to "take care that laws be faithfully enacted."

The president cannot convene public-private partnerships, because the Constitution doesn't list any such presidential prerogative.

Nor can he use the U.S. military against the American people -- the Posse Comitatus Act prohibits him to do so.

As for diplomacy, this can be used only towards foreign countries, again within limits set by the Constitution and the Congress.  The president cannot unilaterally appoint anyone to crucial offices without Senate confirmation, nor can he ratify treaties without the Senate's consent.  Nor can the Senate ratify any treaty it likes -- it can ratify only treaties that are authorized by the Constitution.  It cannot okay a CO2-emissions-limiting accord, because the Congress and the president have no constitutional right to regulate CO2 emissions.
Moreover, the Congress has the right to supervise the president as he manages America's foreign policy.  It can, for example, order a U.S. embassy to be relocated, order (or prohibit) the Executive Branch from doing something, and demand testimonies by Obama administration officials before CSPAN.  The Congress can limit Obama's foreign policy in many ways.

To sum up, Obama will make a serious mistake if he tries to advance his liberal agenda by executive fiat.  He has no constitutional prerogative to do so.  With the exception of employees of federal agencies and the companies that do business with them, Americans will not be bound by any edicts Obama might issue.  Meanwhile, the Executive Branch will be bound by any laws the Congress might make -- and of course, it is already bound by any acts already passed by the Congress to date.
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