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The Purpose of Executive Orders

The President or governors of states issue executive orders.  These types of orders are not limited to the United States though they are not called the same thing in other countries.  This article will discuss the purpose of executive orders at either the federal or the state level.  Many people know that executive orders are issued by the President but I feel many do not understand why they are issued and what their purpose is.  To begin this discussion the history of executive orders will be discussed.

Presidents have been issuing executive orders since 1789 even though there is no constitutional provision that explicitly permits their issuance.  There are vague powers covered in articles to the Constitution.  The first is section 1 of Article II, which incorporates the statement take care that the laws will be faithfully executed.  In section 3 of Article II it identifies the need to give direction to executive officers to direct their operation, the result of failing to comply is removal from office.  Executive orders issued by state governors are not laws but have the same binding nature.

Many criticisms have been made of several executive orders that have been generated over the years regarding the topics covered.  Executive orders are an aid to the President or Governor to give direction to carry out laws issued by the applicable legislature or to give direction to

executive officers.  They are not meant to establish laws only to give direction to department personnel to carry them out.  Wars have been fought through executive orders but they had authorizing resolutions from Congress.

Many times laws generated by Congress are vague in their language to please all political parties involved in their creation.  Presidents cite that executive orders are ways to clarify laws passed through Congress.  Many orders have been issued by Presidents since 1789 and to date only two have been overturned by U.S. Courts.  The first involved an executive order by President Truman placing all steel mills in the country under federal control.  It was invalidated for the reason that it attempted to make law, rather than clarify or act to further a law put forth by Congress.  The second example was an executive order issued by President Clinton that attempted to prevent the U.S. government from contracting with organizations that had        strike-breakers on the payroll.

The system of checks and balances in our country is good.  While we as individuals may not agree with some Presidential executive orders any subsequent President can review prior executive orders.  The review can encompass rescinding or revising executive orders that have been generated.  All Presidents issue executive orders for a variety of reasons.  Executive orders are a needed tool but a President must be careful to avoid creating bad executive orders or ones that create laws.  Based upon my research it appears that executive orders have a variety of purposes not just to give direction on enacted laws.  From researching the issue of executive orders, it appears there are many purposes for which the President has the authority.  one of the President issues them to clarify the language of laws enacted by Congress.  The clarification can amount to an interpretation of the intent especially when the language is vague.

While I understand, the need for Congress to generate legislation the need to be clear in the details of the language is more important now than ever before.  When laws are generated with vague language, it is open to interpretation, which creates confusion.  This causes the enforcement to be inconsistent and is not helpful in reducing cases being brought through the federal court system.  While situations may have some basis for vague language to gain support for passage it does not justify the action.  Vague language in many laws is a disservice to the public.  It is important to prevent as much as possible different interpretations of laws enacted by Congress.

Executive orders for the states are different but the same principle applies. At the state level executive orders can initiate budget cuts for state departments or call the legislature into special session.  Many times issues arise while the state legislature is not in session and the use of executive orders can address conditions without action of the legislature.  Some authorities may be limited dependent upon the language in the state constitution.  Another example is where a governor may issue an executive order to reduce water consumption by state agencies during a drought situation.

In summary executive orders is something most people do not understand.  They encompass a wide range of topics and can be anything from giving direction to federal or state departments or addressing events when Congress is in session or not.  These orders are tools to help the President or Governor manage the government departments under their jurisdiction.  There have been occasions, I believe, where executive orders have interpreted laws on the books.  This can be a problem but it is not one that a President or Governor has created.  The problem centers around the fact that many laws enacted by state or federal legislatures lack clarity and this leaves them open to interpretation.  Who is to say that the interpretation provided by a Governor or the President is not correct?

Another aspect of executive orders is that incoming Governors or Presidents typically review them to consider revisions or cancellations based on their perspectives.  These decisions should be carefully considered.  While each incoming Governor or President has the right to give direction to departments underneath the office, the impact of making changes or cancelling executive orders in place must be considered.  As mentioned previously in this article there have only been two Presidential executive orders overturned by the U.S. court system.  This should be a clear indication that these orders have typically not violated any laws.  Disagreements in policy can exist and when that policy appears to be contrary to laws passed by the applicable Congress consideration should be given to rescind them.  This does not mean that this should be a done deal.  The topic of the executive order can have far-reaching impact.  When making decisions to rescind or revise executive orders in place the incoming official must consider the public position on the subject, not their perspective.  Governors and Presidents are there to serve the people and actions they take must consider the public position.  While the public position may conflict with the real needs of the applicable government entity, those in charge must make the decision based upon the available information, which in some cases may be information that is not public.

One-way to help reduce the confusion or interpretation of laws covered in executive orders is to enact legislation, which clearly defines the purpose, intent and methods as to how the laws are to be enforced.  Laws need to be clearly written not only for those charged with enforcing them but so the public can understand their purpose and applicability.  This would also aid in potentially reducing lawsuits based on an individual or group interpretation as to the meaning of any law enacted.  The public deserves nothing less.


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Dennis AuBuchon

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