posted on Jul, 13 2007 @ 11:58 PM
Executive orders are an odd creature. The president is charged with making sure that the law is followed- his duty is to do what the law says should
But the law does not always explicitly say HOW those things are to be done. That's where executive orders come in. The president can use these to
fill in the blanks on execution, making particular agencies within the executive branch responsible for carrying out the law in a certain way and to
Congress could pass a law saying that a tool shed has to be built in some neighborhood so that the people can get what they need to board up their
windows before a hurricane.
Congress isn't going to say in that law which direction the door of it should face, which store the lumber should be purchased from, or the names of
the people who are and aren't cleared to get tools out of the shed, etc.
So the president will create an executive order that makes the Department of Housing and Urban Development responsible for the national tool-shed
system, and he might add that all toolsheds in the system have to be built to withstand a catagory 3 hurricane, and have to be sprayed for spiders
every 6 months.
With no executive order, nobody is going to build the tool shed. And Congress is going to ask the president, "where the heck is our tool shed?". The
President will say, "I told the HUD to do it, yell at them." But HUD will say, "We never had the legal duty to do that. Congress just said it had
to get done." And congress will say, "That's right. If you wanted HUD to be legally responsible for the tool shed, you could have made them
responsible with an executive order. You didn't, so get your butt outside and build our friggin toolshed". (well, maybe that's an exageration).
The executive order, although it has the force of law, cannot do anything though. It is not explicitly described in the constitution, but limits on
the power of the president are. That means that executive orders can only do what is constitutional, and by implication, they can only do what is
already legal, although there is some gray area.
The President can't create an executive order that makes jaywalking punishable by death. There president does not have the constitutional power to
impose on the Congress or Judiciary- separation of powers. The congress sets the range of legal sentences and the courts pick the sentence in
accordance with the law.
On the other hand, lets pretend for a minute that jaywalking was a federal offense. The president CAN make an executive order telling the FBI not to
investigate jaywalkers anymore, unless there the law says in black and white that the FBI has to do that. If the law did say the FBI had to do that,
the president is still in charge of the executive branch, and he could still issue the executive order, but the Supreme Court could then step in and
reverse it with a writ of mandamus, which is an order from the court telling a government agent that he has to do his job.
Also, the president can use executive orders to do things that aren't required by law, but that aren't illegal either. He could use it to create
"casual dress fridays" for Marines, because there is no law saying that Marines have to wear their uniforms at all times... and as long as the
president doesn't spend any money without congressional approval to make that happen, it's OK. On the other hand, that wouldn't apply to troops who
are deployed, because that would be illegal- treaties dictate that regular military forces must be uniformed and openly bearing arms to enjoy the
protection of the Geneva Conventions and other things, and the constitution makes American treaty obligations a matter of our domestic law.
Edit to add: Don't be fooled by my discription of how things should be. Presidents abuse Executive Orders all the time and they are used to abuse the
law in some cases.
[edit on 14-7-2007 by The Vagabond]