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What is the historical context of Presidential Executive Orders?

President Obama has used Executive Orders as means to achieve a number of things in his time at the oval office. Those actions have often been met with cries of unconstitutionality of his actions.

I thought we would take a look at the historical context of Executive Orders to further understand how they have been used.

Let’s start with what, exactly, an executive order is.

According to the National Archives, “Executive Orders” are “official documents, numbered consecutively, through with the President of the United States manages the operations of the Federal Government.”

No big deal. He needs some way to manage the executive branch, right? And according to the US Supreme Court the goal of an executive order is just to, “clarify or act to further a law put forth by the Congress or the Constitution.” It is NOT intended to make up new laws. And executive orders should NEVER violate the Constitution.

So lets take a look at how some Presidents have issued Executive Orders, and how they hold up:

  • Franklin D. Roosevelt (D), issued a total of 3,728 Executive Orders between 1933 to 1945. FDR issued 573 Executive Orders in 1933 alone. One of his most famous, and a particularly terrible Orders was EO 9066, allowing for the relocation of Japanese Americans during World War II into prison camps.

Who needs their civil rights to the due process of law as outlined in the 5th and 14th Amendments to the Constitution? Not Japanese-Americans during World War II, according to FDR.

Sadly, EO 9066 was not challenged until a congressional committee created by Jimmy Carter investigated the EO, and found the incarceration of Japanese Americans was not justified by military necessity, but rather was based on “race prejudice, war hysteria, and a failure of political leadership.”

FDR also passed EO 6101 which confiscated all gold coins from private citizens. This also fails under a Due Process analysis.

While FDR really got the Executive Order ball rolling in a big way, the next president to majorly play ball was JFK.

  • President John F. Kennedy (D) issued a particularly intrusive collection of executive orders which allows a total subjugation of fundamental freedoms.

For example,

  • The first of the Kennedy-issued executive orders allows the president to take control of all media as long as a national emergency exists. And guess who gets to define when there is a national emergency? You guessed it: The President! Goodbye checks and balances…. Goodbye Due Process!

But it gets worse…

  • Other executive orders from this cluster allow the seizure of all facilities that produce energy, including electricity, gasoline, and solid fuels.
  • Under these circumstances the President could also control “All means of transportation, both public and private, including ground and air transportation.”
  • Another declares that our food resources could be taken over by the executive branch. This includes all agriculture, distribution, and retail facilities.
  • other executive orders allow for the involuntary registration and relocation of U.S. citizens into labor groups under government surveillance. You can ask the Japanese Americans if this sounds familiar.

This group of orders touch nearly every tenant of private life and commerce. And NONE of them have been repealed. In fact, they have been expanded.

Remember the FEMA disaster after hurricane Katrina? Well, the Federal Government acted under the same “law” using executive orders to respond to that catastrophe.

Let’s also not forget, something Former Congressman Ron Paul often reminds us: the “default” position of the Constitution is inaction. If the duties are not clearly given to the federal government, then it is their job NOT to act.

Moving on…

  • President Gerald Ford (R) expanded JFK’s “emergency” executive orders, by empowering government to take over health, education, welfare, mechanisms of production and distribution, energy sources, wages, salaries, credit and the flow of money. Using the very popular reasoning, “Well, the last guy did it, and got away with it….”
  • In the 1980’s President Ronald Reagan (R) sent military forces to El Salvador without Congress declaring an Act of War. He claimed he had authority in furtherance of the “War Powers Resolution” which Congress enacted in 1973. The War Powers Resolution was intended to curtail Nixon sending more troops into Vietnam without a declaration of war.

This Resolution provides that the President can send U.S. armed forces into action abroad only by authorization of Congress or in case of “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” And, you guessed it! The President gets to determine what constitutes a national emergency.

  • President Bill Clinton (D) initiated 363 executive orders, including approving the Kosovo War in 1999, without Congressional approval, and by using the same “War Powers” excuses as Reagan.
  • President George W Bush used Executive orders as well but added a new twist. He also began using signing statements in earnest. A signing statement is a statement attached to a piece of legislation passed by congress. It is sort of like a subset of Executive Orders. Its purpose is to clarify a law, but in reality the signing statements of George W Bush actually changed the meaning of the law congress passed.

So I hope this gives some historical context to what executive orders are and how they have been used.

I will publish a follow up article in the next few days explaining other tools at the disposal of the president that are very controversial.