Executive Order 101 – A Primer

Several times I’ve stated our president abused executive orders
In multiple cases I’ve been met with an answer like…
“Well so?! George Bush used executive orders!

Brings me to the realization I should spend more time grooming my horse and less talking to horses rears, but on the chance it may help someone, I’ll explain why that is silly.

What IS an Executive Order?
If you check the constitution you won’t find the answer, cause it isn’t mentioned there. It is just an object born of tradition, an instrument presidents thru the years have developed to pass on instruction to the executive branch… The people and institutions under their purview.

What an Executive Order is NOT
It is NOT a law.  The constitution is the enabling document that defines federal powers, and it vests all lawmaking capacity in the legislature. An executive order is NOT a legislative instrument. It cannot create law. It cannot abolish law. It cannot alter law.

Separation of Powers
We have three branches of government…

  • – The Legislative Branch (Senate and the House of Representatives) – creates law
  • – The Executive Branch (President and depts) – sign or vetoes laws, enforces laws passed by legislative branch
  • – The Judiciary (The courts) – interprets laws

Per the constitution, laws may ONLY be created by the legislative branch.

The president as the head of the executive branch
…can sign them and they become law, or he can veto them and they don’t. That’s the extent of his lawmaking capacity. Nor can he refuse to enforce laws of which he disapproves. The decision whether laws are constitutional is vested entirely in the judiciary.

Checks and Balances
The three co-equal branches form a system of checks and balances against each other. Each has a function of laws, none can perform the function of the other two.

The separation of powers was carefully sculpted by the founders and has been jealously guarded by the branches. The object is to prevent one branch from gaining too much authority.

Back to the original topic
When Obama writes an “Executive Order” it CANNOT be used to create a law he’d like to see. Writing law is not his job. He did that when he wrote an exec order instructing the executive branch NOT to enforce the Defense of Marriage Act.

Liking the laws his branch enforces isn’t a requirement. Following his oath of office is. He must enforce the laws passed by the legislative branch unless the judicial branch rules them unconstitutional.

He similarly usurped legislative authority after he didn’t get The Dream Act passed. He instructed his branch not to enforce immigration laws on an entire class of individuals. I am not arguing for or against The Dream Act, I’m saying he doesn’t have the authority to pass his own laws or refuse to enforce those passed by the legislature.

But Bush did executive orders!
Yes. So have many presidents. There isn’t anything wrong with Obama creating executive orders. There is a HUGE problem with him writing Exec Orders that defy the aforementioned separation of powers.

So in closing… If someone states Obama created an executive order that broke the law and the reply is that Bush wrote executive orders too… It is similar to the following exchange:

— Your buddy Tom went for a drive and ran over a pedestrian.
— So!? Your buddy Sam went on more drives than Tom!

PSST! It isn’t the drive that’s in question. It’s the illegal action taken on the drive.

Executive orders are NOT illegal.

Executive orders employed to create, modify or countermand laws ARE illegal.

Obama continues to act as if winning a second election made him king. If he writes more executive orders that ignore the limits of his powers per the constitution, Congress would be crazy NOT to hit him with articles of impeachment to keep him from overstepping his authority. That’s how the checks and balances system was designed to work.

Thus ends the lesson. I’m not a lawyer, I’m not a civics teacher, but they do teach this stuff in high school. Sue me for having paid attention.

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