Historical NON-limitations on the scope of Executive Orders

[44Brent]

Given discussions on what Obama might do through Executive Orders to implement his agenda, it is important to understand that historically, Presidents have successfully used EOs in completely unlimited ways.

Example 1: Executive Order 6102 is an Executive Order signed on April 5, 1933, by U.S. President Franklin D. Roosevelt "forbidding the Hoarding of Gold Coin, Gold Bullion, and Gold Certificates within the continental United States". The order criminalized the possession of monetary gold by any individual, partnership, association or corporation.

http://en.wikipedia.org/wiki/Executive_Order_6102

Example 2: President Franklin D. Roosevelt authorized the internment [of American citizens of Japanese descent] with Executive Order 9066, issued February 19, 1942, which allowed local military commanders to designate "military areas" as "exclusion zones," from which "any or all persons may be excluded." This power was used to declare that all people of Japanese ancestry were excluded from the entire Pacific coast, including all of California and much of Oregon, Washington and Arizona, except for those in internment camps.[8] In 1944, the Supreme Court upheld the constitutionality of the exclusion orders,[9] while noting that the provisions that singled out people of Japanese ancestry were a separate issue outside the scope of the proceedings.[10] The United States Census Bureau assisted the internment efforts by providing confidential neighborhood information on Japanese Americans. The Bureau's role was denied for decades, but was finally proven in 2007.[11][12]

http://en.wikipedia.org/wiki/Japanese_American_internment

Conclusion: There is no historical restraint on the scope and use of Executive Orders.

 

[Bubba613]

Your examples are sui generis and your conclusion is faulty.

 

[joeschmoe]

Given discussions on what Obama might do through Executive Orders to implement his agenda, it is important to understand that historically, Presidents have successfully used EOs in completely unlimited ways.

Example 1: Executive Order 6102 is an Executive Order signed on April 5, 1933, by U.S. President Franklin D. Roosevelt "forbidding the Hoarding of Gold Coin, Gold Bullion, and Gold Certificates within the continental United States". The order criminalized the possession of monetary gold by any individual, partnership, association or corporation.

http://en.wikipedia.org/wiki/Executive_Order_6102

Example 2: President Franklin D. Roosevelt authorized the internment [of American citizens of Japanese descent] with Executive Order 9066, issued February 19, 1942, which allowed local military commanders to designate "military areas" as "exclusion zones," from which "any or all persons may be excluded." This power was used to declare that all people of Japanese ancestry were excluded from the entire Pacific coast, including all of California and much of Oregon, Washington and Arizona, except for those in internment camps.[8] In 1944, the Supreme Court upheld the constitutionality of the exclusion orders,[9] while noting that the provisions that singled out people of Japanese ancestry were a separate issue outside the scope of the proceedings.[10] The United States Census Bureau assisted the internment efforts by providing confidential neighborhood information on Japanese Americans. The Bureau's role was denied for decades, but was finally proven in 2007.[11][12]

http://en.wikipedia.org/wiki/Japanese_American_internment

Conclusion: There is no historical restraint on the scope and use of Executive Orders.

False. From your own link;

"There was only one prosecution under the order, and in that case the order was ruled invalid by federal judge John M. Woolsey,"

Congress specifically gave Roosevelt the authority to issue his EO on internments. Both of which have since been ruled to be an abuse of power and an example of illegal actions by our government, not examples of what is allowed.

The President is not a king.

 

[abajaj11]

Right...so if Congress passes a law, then an EO can be issued to help implement the law.
Like, if Congress passes a law requiring that the DOJ enforce background checks for sales of ALL firearms, then an EO requiring registration of all firearms can be signed because it is needed to implement that law.

 

[44Brent]

Congress specifically gave Roosevelt the authority to issue his EO on internments. Both of which have since been ruled to be an abuse of power and an example of illegal actions by our government, not examples of what is allowed.

Oh, so I guess that there were no internments of Japanese citizens then. Silly me.

 

[Frank Ettin]

Right...so if Congress passes a law, then an EO can be issued to help implement the law.
Like, if Congress passes a law requiring that the DOJ enforce background checks for sales of ALL firearms, then an EO requiring registration of all firearms can be signed because it is needed to implement that law.

[1] The discussion thus far had been around the notion that the President can bypass Congress using executive orders. If Congress enacts a law, an executive order implementing the law within the scope of the law might be proper.

[2] But it's highly doubtful that an executive requiring registration of guns would be within the scope of a law requiring background checks on all gin transfers.

Congress specifically gave Roosevelt the authority to issue his EO on internments. Both of which have since been ruled to be an abuse of power and an example of illegal actions by our government, not examples of what is allowed.

Oh, so I guess that there were no internments of Japanese citizens then....

Oh, there was internment. But your reading comprehension is deficient.

The point is that the internment of the Japanese during World War II was not accomplished solely by executive order. The executive order had been authorized by Congress.

 

[HankB]

Executive orders that affect the public require some sort of enabling legislation. EOs otherwise are otherwise pretty much limited to Executive Branch employees and foreign trade/relations. (Not that former presidents haven't tested the limits at times.)

 

[Apple a Day]

Okay, could the pres. order either
a) funding to run the "instant background check" system cut off/diverted and effectively shut it down
b)order federal workers who RUN the "instant background check" system to go do something else, again effectively shutting it down?

It's a dirty-pool tactic and might be overturned but with gun stores unable to do background checks it would effectively run them out of business.
Possible?

 

[Bubba613]

a) funding to run the "instant background check" system cut off/diverted and effectively shut it down
b)order federal workers who RUN the "instant background check" system to go do something else, again effectively shutting it down?

No. Any more than the president could order voting shut down by whatever means.

 

[Frank Ettin]

Continued bickering about executive orders by folks who apparently have not been paying attention to prior discussions.

What can be done by executive order is limited and must be within the scope, and consistent with the terms, of a regulation or statute the implementation or enforcement of which is the subject of the executive order. An executive order can not make new law and must be consistent with existing law.

Here's a good article helping to add some rationality to the discussion.

Note that law professor Adam Winkler states (regarding Obama's options by executive order):

...His [Obama's] options are limited," Adam Winkler, constitutional scholar at the UCLA School of Law, said by phone Friday. "He can seek to better enforce existing federal law, but he can't act contrary to existing federal law....

 

[ec4321]

An executive order....must be consistent with existing law.

However, whether or not it is consistent with existing law would be a question for the courts, yes?

So just like a new statute which "must be consistent with the constitution", new statutes are much like new EO's, for all practical intents and purposes, in that they are the law of the land unless or until overturned by the courts.

Therefore your opinion on whether or not an EO would be consistent with existing law or not is irrelevant. That is for a court to decide.

The legislature can pass laws inconsistent with the constitution. The executive can pass down orders inconsistent with the body of law, including the constitution.

 

[Frank Ettin]

However, whether or not it is consistent with existing law would be a question for the courts, yes?...

Yes.

Therefore your opinion on whether or not an EO would be consistent with existing law or not is irrelevant. That is for a court to decide.

I don't recall having stated an opinion as to whether any particular executive order was or was not consistent with existing law. And the sorts of opinions I would normally venture an opinion in terms of what I, as a lawyer, might expect a court to find.

As I've stated before, all opinions aren't equal.

 

[ec4321]

An executive order can not make new law and must be consistent with existing law.

Then this would be an incorrect statement.

EOs can be inconsistent with existing law and can in fact, effectively, make new laws.

Just as new statutes can be inconsistent with the constitution.

 

[Frank Ettin]

An executive order can not make new law and must be consistent with existing law.

Then this would be an incorrect statement.

EOs can be inconsistent with existing law and can in fact, effectively, make new laws.
...

Well, let's see --

• On one hand we have --
  
  
  • A lawyer who practiced law for more than thirty years, me, who says:

    An executive order can not make new law and must be consistent with existing law.

    
    
  • And Adam Winkler, a professor of law at UCLA, constitutional scholar and author of Gunfight: The Battle over the Right to Bear Arms in America who says here:

    ...His [Obama's] options are limited," Adam Winkler, constitutional scholar at the UCLA School of Law, said by phone Friday. "He can seek to better enforce existing federal law, but he can't act contrary to existing federal law....

  
  
• And on the other hand --
  
  
  • An anonymous ? in cyberspace who says:

    EOs can be inconsistent with existing law and can in fact, effectively, make new laws.

I'll let folks take their pick.

 

[44Brent]

Frank,

1) At what point in time did Congress pass a law authorizing Roosevelt ordering U.S. Citizens to forfeit their gold coins, under threat of criminal prosecution?

2) What is the precise name of the law and its number that authorized Roosevelt to order U.S. Citizens to forfeit their gold coins?

 

[ec4321]

h

Well, let's see --

• On one hand we have --
  
  
  • A lawyer who practiced law for more than thirty years, me, who says:
    ​
    
    
  • And Adam Winkler, a professor of law at UCLA, constitutional scholar and author of Gunfight: The Battle over the Right to Bear Arms in America who says here:
    ​
  
  
• And on the other hand --
  
  
  • An anonymous ? in cyberspace who says:
    ​

I'll let folks take their pick.

An executive order can not make new law and must be consistent with existing law.

Credentials and experience not-withstanding, you have to agree your statement is inconsistent with the historical facts.

Unless it is your position that the internment of the Japanese was consistent with the Constitution, the supreme law of the land.

 

[Frank Ettin]

...1) At what point in time did Congress pass a law authorizing Roosevelt ordering U.S. Citizens to forfeit their gold coins, under threat of criminal prosecution?

2) What is the precise name of the law and its number that authorized Roosevelt to order U.S. Citizens to forfeit their gold coins? ...

This is irrelevant. As noted in post 3, in the only case to be brought under the order, a federal judge ruled the order invalid.

...Unless it is your position that the internment of the Japanese was consistent with the Constitution.

In Korematsu v. United States, 323 U.S. 214 (1944) the Supreme Court ruled that the internment was constitutional.

 

[ec4321]

In Korematsu v. United States, 323 U.S. 214 (1944) the Supreme Court ruled that the internment was constitutional.[/QUOTE]

Well, that's debatable. I think they upheld the exclusion order but did not address the specifics acts that interned the Japanese. But I digress, what I said was - unless YOU are going to argue the orders that interned the Japanese were consistent with the law - then you have to agree that Executives can in fact make orders that are outside the law.

 

[joeschmoe]

- then you have to agree that Executives can in fact make orders that are outside the law.

No. You still haven't read/understood what has been posted here. The President is not a king.


"The Constitution is law "above every office"" - US v Nixon

 

[ec4321]

No. You still haven't read/understood what has been posted here. The President is not a king.


"The Constitution is law "above every office"" - US v Nixon

That's not my point. I agree the constitution trumps all.

However, from time to time laws are enacted and EOs are issued which are unconstitutional. And despite them being unconstitutional they are still executed upon as if they weren't and therefore they are the defacto law until a court strikes them down.

My point, for Frank, is that the EO to intern the Japanese was unconstitutional, and therefore that is proof that EOs can (and have) issued orders that in essence make a new law that may not be consistent with existing law up to and including the constitution.

 

[joeschmoe]

This thread is about "Conclusion: There is no historical restraint on the scope and use of Executive Orders."

Just false. Repeatedly disproven. EO are now more restricted that ever. The more overreaching any future EO's are, the faster they will get struck down. Please stop this chickenlittle style claims that EO's will make new law, or violate our rights. No. If they do, it will be very temporary and will be struck down.

No government or law is perfect. The system is pretty amazing at self correction, fixing abuses, and moving forward towards "a more perfect union".

If you want perfection, I suggest the afterlife.