President bush and Senator Obama

President bush and Senator Obama

I am hoping that my new friends at Inside Government will do a post on this, but I’m going to take a stab at it myself. Today’s news is peppered with stories about President Elect Obama preparing to reverse policies of the Bush administration using executive orders. The Bush administration is also reported to be busy issuing executive orders, some of which Obama is supposed to be planning to immediately reverse.

So what is an executive order and how can all these orders be flying around, changing the endangered species act and what all without Congress weighing in? There is a very short statement in Article II of the Constitution, which outlines the powers and duties of the President “. . . he shall take care that the laws be faithfully executed.” Presidents, since George Washington have done so by issuing orders to the heads of various departments of the executive branch of the government, telling them how the President wants them to act in order to execute the laws made by Congress. The State department began numbering executive orders in 1907, retroactively, starting with an order issued by Abraham Lincoln in 1862 to establish military courts in New Orleans, which had been captured by Union Forces in the Civil War.

Harry Trueman was he first President to get into a bit of trouble, in 1952, with Executive Order 10340, placing all steel mills under Federal control during a massive steelworkers strike. The Supreme Court found this order to be invalid, saying that it attempted to make new law and not to execute the laws laid down by Congress. Since then Presidents have been careful to tie their executive orders to some bill that Congress has passed, in some plausible manner.

Presidents have signed many many executive orders, to faithfully execute the laws, or to interpret them in a way that suits the President. The Bush administration’s executive orders have, I have read, often contained language which explains why some laws or parts of laws, are, in the President’s view, unconstitutional. These orders are used a justification for not executing those laws, or not in the way they were written.

Thus the Obama transition team is reviewing all the executive orders issued by the Bush administration, looking for orders which President Elect Obama will want to modify or cancel. This will be a quick way of changing the direction being taken by the federal government. Meanwhile the Bush team is busy issuing new executive orders, hoping to put in motion governmental efforts which would serve to perpetuate President Bush’s philosophy of government.

This is the first time that I can recall hearing about a Presidential transition team making a thorough review of the outgoing President’s executive orders with the aim of changing or negating them. We live in interesting times.

 Note: here is another try at explaining executive orders by the Law Blog at the Wall Street Journal.

Note: Inside Government has published a piece on Executive orders now, too.