Constitutionality of Presidential Executive Orders

What is the legality of the presidential executive order? This question has repeatedly been raised in many circles. Authority to issue these orders is not specifically delineated in the Constitution. However, Article II, Section 1, of the Constitution gives executive power to the president and in Section 3, the president is directed to “take care that the Laws be faithfully executed.”

The president uses executive orders (EOs) to direct the executive branch departments for which he has responsibility. The main principle of an order is to guide federal agencies in executing laws established by Congress. Two major policy changes effected through EOs were armed forces integration under Truman and public school integration under Eisenhower.

Approval by Congress is not needed for an executive order to take effect, but the orders do have the same legal ramifications as Congressional passed legislation. EOs are subject to the judicial process and can be declared unconstitutional. To date, only two orders have been acted upon by the courts and overturned. One order, issued by President Truman, exercised federal control of the steel mills. Since then, most presidents have been cautious to give specific citation of the laws relating to a new EO issuance.

The greatest criticism of EOs is that their open use eventually culminates in a president being unilaterally capable of major policy decisions without input from Congress or the judicial system. (Present Clinton issued over 300 EOs.) The recourse for Congress would be to amend the law or disapprove funding. However, when Congress fails to clarify legislation it passes, it gives the president enormous latitude to fill in the details. Although presidents have been accused of executive order abuses, Congress does cede considerable leeway to the president for implementation of the laws it enacts.