2 questions for smart DUers about the Constitution?

[Botany]

I have always thought that the US Constitution grants the POTUS the power
of using an executive orders but in the 15 seconds I watched of the GOP
debate last night Rubio said that President Obama's use of executive orders
was unconstitutional which made me flip back to the basketball game.

1) Does the US Constitution grant the POTUS the power of using executive orders?

b) And if so where in the Constitution is this written about?

******
Thank you and grab a slice of muffaletta for your trouble.

[SummerSnow]

1. Well let me eat this before I answer that.

[TreasonousBastard]

2. It doesn't, it just hints at it in Article 2. But...

Executive orders have been around since the beginning of the Republic except they weren't always called that. There is an assumption that the President has to have this authority in order to do his job-- like any executive. Naturally, there's always fighting over the limits of this power, and, as with Rubio, it's usually just BS politics6.

Wiki has a better description than some of the law school sites I found...

https://en.wikipedia.org/wiki/Executive_order

[theboss]

3. These are the entirety of the duties of the office

Section. 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section. 3.

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

[MADem]

4. He can't appropriate money, or levy a tax to pay for an executive order.

All appropriations have to begin in the House at Ways and Means.

So, in effect, that limits his power right there. If he tried to do that kind of thing, the Supreme Court would shut him down in an instant.

He can't say "I want free health care for everyone so all you citizens are going to hand over two or three percent of your salary." Congress has to pass laws authorizing the tax increase, and then authorizing the program upon which the tax increase will be spent.

[CommonSenseDemocrat]

5. Implicitly, but executive orders cannot make or violate law

In other words, the President could not make drinking Diet Coke illegal without a law passed by Congress.

In regards to immigration, and I don't agree with open borders the same way I don't agree with limitless H1 B permits, I think the President's executive order was okay except when he gave work authorization permits unilaterally. I don't think he had a right to do that and he should have just kept his executive orders focused on deportation.

[treestar]

10. He does because all POTUS have the right

to defer action, which is what he did. People who have action deferred can have work permits. That's already in the law.

[Gregorian]

6. I wonder if some get confused over that versus signing statements.

Honestly, I'm not sure either.

[stevenleser]

8. Signing statement is re: a bill he is currently signing into law. He makes a modification at that

time to the law.

[bvf]

11. Signing statements have no legal effect.

https://www.loc.gov/law/help/statements.php

Nor do they modify a law in any way.

[Gregorian]

13. Thanks.

I have to keep relearning what I forget. I love this place. You guys are just so fantastic. What I've learned here is invaluable.

What a link! As if I didn't have enough time already.

[struggle4progress]

7. Const Art II Sec 1: "The executive Power shall be vested in a President of the United States"

The President is the head of the Executive branch, which confers enormous administrative power

[theboss]

12. There is some grey area there as well

One of the areas where Obama has gotten criticism is telling executive departments NOT to do things.

[treestar]

9. The POTUS runs the executive branch

any of his orders could be challenged in courts and have been.

They are only about how to go about enforcing the laws that the POTUS is supposed to enforce - execute. They can't add or detract anything from the laws.

The ones Obama did on immigration are prosecutorial discretion, deciding not to use limited resources in prosecuting certain cases - like the people who came to the US as children illegally and thus it is not their fault. Still they are deportable, and Obama could not change that, but he could decide to go after other people as a priority.

[branford]

16. I would note that the nature and extent of such prosecutorial discretion

is the subject of current litigation, the administration is not faring very well with the district court or circuit court of appeals, and I believe an injunction is still in place against the president's program.

[Igel]

20. It really is a slippery slope.

It's fairly easy to do something like gut equal-opportunity or voting-rights laws simply by refusing to enforce them. "Sorry, we're busy doing other things."

Hence the problem.

Esp. if there's a racial or ethnic bias introduced into enforcement.

[branford]

25. Very true.

I'm curious if everyone supporting the president's lack of enforcement of immigration laws would feel the same if a Republican president chose not to "prioritize" enforcement of federal laws protecting abortion clinic access.

It's a difficult legal and political issue, I'm curious how the courts ultimately resolve the issue, if at all, and many people's opinions only concerns whether their preferred policy positions are enforced, not the much larger issues of the limits of executive power, separation of powers, or constitutional duties to enforce laws.

[Hortensis]

14. If Congress passed a law making a national park

in some general area but the law was without further details, the president would implement that law by using his executive authority to make all the decisions to bring the park about, including deciding on its precise size and location, purpose, design, purchase of lands, and a million other things.

That's an extreme example, but Congress often leaves out details or does not foresee issues that arise, and the president still has a duty to enact these laws. So the president's authority to make decisions that conform to the spirit and intent of the law is very well established by long practice and court decisions.

As said, since Congress holds the purse, the president may not decide to spend more money on the park than allocated, although he might choose to look around the executive branch to find some extra that could be legally put to use for the park.

[KamaAina]

15. It's "muffuletta", cher

but pronounced "muff-a-lotta". Are you in NOLA?

[Botany]

17. guess you have more then one way to spell it

http://emerils.com/121389/muffaletta


Sorry I'am in central OH but once a year I make some muffuletta for a party .....
I had some left over ingredients still in the fridge so I used them up and made
one more for me.

[KamaAina]

18. Emeril is an impostor from Fall River, Mass.

Where does one find olive salad in Ohio? Or do you make your own?

[Botany]

19. Make my own

Pretty easy.

[Igel]

21. Both EOs and signing statements result from all executive power being invested in the president.

That office is unitary (there's just one), hence the "unitary executive"--there is one executive branch and it reports to the only source of executive power.

There are mixed-authority governmental agencies where executive power was partly granted by Congress to people not dependent on the President or placed under Congressional oversight/control. There's some tension there in case law. Things like the SSA and CIA have traditionally been split or quasi-independent.

Otherwise the Prez is limited to just pre-court-decision interpretation. The Prez gives instructions for his employees concerning how to implement and enforce a law.

In the case of signing statements, it's a bit fuzzier. Ultimately, it's how the executive branch enforces the law. Most of Bush II's were of the nature "this requires a dept. chair to personally sign all audits--according to another law, this means he's personally vouching that he's produced these numbers personally and is to be held accountable for the accuracy of every one; according to a third law, it means he's accepting the report that one of his underlings produced, without sticking his neck out for the accuracy of every number. Since the law I'm signing doesn't say which rule applies, I'm saying that my interpretation is the second--mere acceptance."

This is pretty pointless. But when a court looks at the legislative history, the president plays a role in passing the law--and this says, in short, "If I thought it meant otherwise, it would have been vetoed." It also points out that some stuff in the Congressional record might be fake--it's not uncommon for Congressfolk weeks after a law is passed to insert whole speeches into the record that never took place. So the legislative history might not be quite historical.

[NCTraveler]

22. My favorite sandwich.

As for the rest, I don't meet the qualification clearly spelled out in your title.

[geek tragedy]

23. It depends on the particular executive order. If it's a directive to government agencies, then the

basis is role as head of the executive branch.

Sometimes Congress delegates power to the president, which could be another source of authority.

[lpbk2713]

24. This OP isn't addressed to me.

I only opened it up to see who replied.

[BlueMTexpat]

26. Nice discussion generally

and delicious sandwich! Thanks!