Executive Orders – Separation of Powers


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Our Constitution set up three distinct, separate branches of the government -The Executive branch, the Legislative branch and the Judicial branch.  Each of these have different functions and powers.  The Constitution words it this way:

Article 2, Section 1
The executive Power shall be vested in a President of the United States of America.

Article 1, Section 1
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Article 3, Section 1
The judicial Power of the United States shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish.

What does it mean “vested”?  The dictionary says, “To place (authority, property, or rights, for example) in the control of a person or group.

The men who wrote and adopted the Constitution were no mere farmers.  They were the intellects of their day.  They studied the science of politics.  They read the works of many political geniuses throughout history.  One particular scholar and writer they read was Baron de Montesquieu, Charles-Louis de Secondat (Montesquieu).  He wrote “The Spirit of the Laws”.

In the Federalist Papers #47, James Madison quotes Montesquieu as saying, “There can be no liberty where the legislative and executive powers are united in the same person.”  Madison then continued by saying, “The accumulation of all power, legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.”

We see the powers of one branch over another branch being usurped in many ways these days and all of it going unchecked or unchallenged.  One example is the judicial branch making laws through judicial decrees and another example is the President making laws through Executive Orders and Proclamations.

Today, I’m focusing on Executive Orders (EO).

Prior to 1907, executive orders basically were not announced or documented.  In 1907, the Department of State instituted our current numbering system.  There were no rules or guidelines saying what the President could or could not include in an Executive Order.  However, in 1952, one of Harry Truman’s Executive Orders was challenged by the Supreme Court in Youngstown Sheet & Tube Co v. Sawyer.  In EO 10340, Truman said that all steel mills would be under federal control.  The Supreme Court said the EO attempted to make law rather than just clarify law or act to further a law put forth by Congress.

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In the concurring documents of this case, Justice Frankfurter said of our founders:  “They acted on the conviction that the experience of man sheds a good deal of light on his nature.  It sheds a good deal of light not merely on the need for effective power, if a society is to be at once cohesive and civilized, but also on the need for limitations on the powers of governors over the governed.  To the end they rested the structure of our central government on the system of checks and balances.  For them the doctrine of separation of powers was not mere theory; it was a felt necessity.”

One of the major duties of the Executive Branch of government is to make sure the laws created by the legislative branch are executed and enforced.  It is unconstitutional for the President to create law through the use of Executive Orders.  However, Presidents have been doing so (both Democrats and Republicans) down through the years – some worse than others.

Recently, Obama issued an Executive Order establishing the Council of Governors.  While I detest this EO and feel that the Council of Governors is unconstitutional, Obama had the authority to execute the EO.  The blame for the Council of Governors goes to the 110th Congress who passed the “National Defense Authorization Act of 2008 with Section 1822 in it.

However, the EO#13527, “Establishing Federal Capability for the Timely Provision of Medical Countermeasures Following a Biological Attack” does seem to legislating from the Oval office.  No prior legislation is mentioned, so I can only assume he is making law.

Even Abraham Lincoln created law when he issued Executive Orders on September 22, 1862 and January 1, 1863 which are now referred to as the Emancipation Proclamation giving freedom to slaves in Confederate states.  Don’t get me wrong – I am in no way condoning slavery.  However, he did not have the authority to do so.  Congress and the states later rectified this by passing the 13th, 14th, & 15th Amendments to the Constitution.

So, what can about this?

If it is in regard to a law that the President has clarified or executed erroneously, they can rewrite or amend a previous law, or spell it out in greater detail how the Executive Branch must act.  In cases where the President is enacting law, the EO can be challenged in court, usually on the grounds that the Order deviates from “congressional intent” or exceeds the President’s constitutional powers.

We need to contact our representatives in Congress (both Senators and House of Representatives) and demand that they uphold the Constitution by challenging Executive Orders that are not just clarifying or executing law that they, the Congress, have passed.

Let us demand that the system of “Checks and Balances” be enforced to ensure the freedom of us, the citizens of the United States.

As I stated in my article, “Anarchy to Tyranny”, the President is NOT over the Legislative and Judicial Branches of government.  He is equal with them.  Let us never forget this.

  • Great article, Jackie. It’s really not amusing when I stop and think about it, but I have laughed a few times, when I heard of one President issuing an executive order that countermanded or annulled an executive order issued by a previous President.

    As a way of educating myself, let me ask a question. How would the members of Congress go about challenging an executive order?

  • LD, if I’m remembering correctly, the Congress (can’t remember which house)has 90 days to over-rule it with a 2/3 majority. Folks, correct me if I’m wrong here.

    Jackie, this is a fantastic post. It’s all the more relevant since the POTUS mentioned both Executive Orders and Separation of Powers last night.

    • Thanks, Matt. I wasn’t sure about that. From the reading I have been doing, it looks like they can not vote to override it, but rather have to pass a law that cancels or changes it.

      Yes, this is a great post.

  • Can anyone say “Pot calling the kettle black”?

    Obama calls out the Supreme Court on separation of powers for the decision they made regarding the contributions to politicians yet he makes Executive Orders creating law.

    These guys have no clue! We need common sense people in Washington to run this country.

    Also, fyi Pot is the beginning of POTUS

    • LOL at “Pot.”

      Again, great post Jackie. It’s an important topic that doesn’t get mentioned nearly enough.

    • I prefer to call him POSOTUS

      • LOL. Snarky has a way with words.

  • Jackie.
    Well written and thought provoking post. You did an outstanding job. I look forward to reading more in the future.

  • Don

    Great post Jackie, you must be a teacher!

  • This has been a problem for a long time. The judicial branch has been doing way to much legislating from the bench. But, the executive branch has been even worse. The new Congress in 2010 needs to stand up and take back the powers that are rightfully theirs.

  • The Declaration of Independence talks about how representatives of the people were “opposing with manly firmness his [The King’s] invasions on the rights of the people.”

    I think we need some of that “opposing with manly firmness” going on today – regarding both Executives and Judges.

    • Thanks for visiting Thirstyjon, I’ve seen your updates on Blog Catalog. I’ll have to pay you a visit later.

  • Great post with alot of good information. You are right, the president is not above the other branches, he is equal to them. We would be well served if the politicians realized this and we would be even better serve if the people realized this and voted out those who do not understand the way our government is supposed to work.

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  • I must concur … Great post!

    Until Mavericky McCain’s hero Teddy Roosevelt, presidents didn’t campaign with a long list of legislative promises and enter office with a legislative agenda. They left legislation to the Congress as it was supposed to be.

    Prior to TR, the president was a rather obscure politician. Politics were local as they should be. Our Founder’s got it right. It’s up to us to get it back.