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Neil, page 1:
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Abstract
The Constitution vests the President with the duties of
commander in chief, head of state, chief law enforcement officer, and head of
the executive branch. When the President is lawfully exercising one of these
responsibilities conferred by Article II of the Constitution, the scope of
his power to issue written directives is especially broad, and Congress has
little ability to regulate or circumscribe the President’s use of written
directives.
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The Constitution vests the President with the duties of
commander in chief, head of state, chief law enforcement officer, and head of
the executive branch. When the President is lawfully exercising one of these
responsibilities conferred by Article II of the Constitution, the scope of
his power to issue written directives is especially broad, and Congress has little
ability to regulate or circumscribe the President's use of written
directives.
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Neil, page 1:
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[Note that the source is correctly cited, but no
indication is given when Neil is quoting directly from this source]
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Nevertheless, the President’s power to issue executive
decrees is limited – by the scope of his powers and by other authority
granted to Congress. If the President’s authority is derived from a statutory
grant of power, Congress remains free to negate or modify the underlying
authority. (Gaziano, 2001, p2). However, this remains unlikely considering
that it has happened roughly 20 times in the past 100 years.
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Nevertheless, the President's power to issue executive
decrees is limited--by the scope of his powers and by other authority granted
to Congress. If the President's authority is derived from a statutory grant
of power, Congress remains free to negate or modify the underlying authority.
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Neil, page 2:
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Deering and Maltzman, page 767
http://psclasses.ucdavis.edu/pol106/Readings/deering-maltzman-prq1999.pdf [Note that after the second sentence Neil
does provide the correct source, but does not indicate when he is directly
quoting from this source]
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Conventional wisdom suggests that Presidents use executive
orders, sometimes
characterized as Presidential legislation, when actual
legislation is too difficult to pass. Recent studies have found little systematic
evidence that executive orders are used to circumvent a hostile Congress.
Deering, Christopher. “The Politics of Executive Orders: Legislative
Constraints on Presidential Power. Sage Journals Online, 1999.
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Conventional wisdom suggests that Presidents use executive
orders, sometimes characterized as presidential legislation, when legislation
is too difficult to pass (in the face of an opposition Congress, for example)
or when executive departments or agencies tend to embrace their congressional
patrons, rather than the White House. According to this model, executive
orders are strategic instruments used by a President to circumvent the
constitutionally prescribed policymaking process. Recently studies have found
little systematic evidence that executive orders are used to circumvent a
hostile Congress.
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Neil, page 2:
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Executive Orders do not require Congressional approval to
take effect but they have the same legal weight as laws passed by Congress.
In fact, many important policy changes have occurred through Executive
Orders. President Harry Truman integrated the armed forces under an Executive
Order. President Dwight Eisenhower used an Executive Order to desegregrate
schools. Presidents Kennedy and Johnson used them to bar racial
discrimination in federal housing, hiring and contracting. President Regan
used an Executive order to bar the use of federal funds for advocating
abortion, which was reversed by President Clinton when he came into office.
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Executive Orders do not require Congressional approval
to take effect but they have the same legal weight as laws passed by
Congress. …
Many important policy changes have occurred through
Executive Orders. Harry Truman integrated the armed forces under Executive
Order. President Eisenhower used an EO to desegregate schools. Presidents
Kennedy and Johnson used them to bar racial discrimination in federal
housing, hiring, and contracting. President Reagan used an EO to bar the use
of federal funds for advocating abortion. President Clinton reversed this
order when he came into office.
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Neil, page 2:
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http://www.thisnation.com/question/040.html
[Note that correct source is given by Neil at the end of one sentence, but no
indication is given when he is quoting directly from this source]
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As a result, Executive Orders are sometimes controversial
because they allow the President to make major decisions, even law, without
the consent of Congress. Congress, however, is less likely to challenge
Executive Orders that deal with foreign policy, national defense, or the
implementation and negotiation of treaties, as they are powers granted
largely to the President by the Constitution. On the other hand, Executive
Orders can be challenged in court, usually on the grounds that the Order
deviates from “congressional intent” or exceeds the Presidents constitutional
powers. For the most part, however, the court has been fairly tolerant of a
wide range of Executive Orders. What is an Executive Order?
ThisNation.com, 2008
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Executive Orders are controversial because they allow
the President to make major decisions, even law, without the consent of
Congress. … Congress is less likely to
challenge EOs that deal with foreign policy, national defense, or the
implementation and negotiation of treaties, as these are powers granted
largely to the President by the Constitution. … In addition to congressional
recourse, Executive Orders can be challenged in court, usually on the grounds
that the Order deviates from "congressional intent" or exceeds the
President's constitutional powers. …. For the most part, however, the Court
has been fairly tolerant of wide range of executive actions.
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Neil, pages 2-3:
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http://usgovinfo.about.com/od/thepresidentandcabinet/a/Presidential-Executive-Orders.htm
[source is correctly given at the end of one sentence by Neil, but not
indication is given of when the source is being directly quoted]
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The President can retract an Executive Order at any time.
He may also issue an Executive Order that supersedes an existing one. New
incoming Presidents may choose to follow the Executive Orders of the
predecessors, replace them with new ones of their own or revoke the old ones
completely. Many people strongly oppose the Executive Order as being
unconstitutional, even potentially dictatorial application of power. In
extreme cases, Congress may pass a law that alters an existing Executive
Order and the Supreme Court may declare them to be unconstitutional. US
Government Info “Executive Orders” 12/18/97. About.com.
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The president can amend or retract an executive at any
time. The president may also issue an executive order superseding an existing
one. New incoming presidents may choose to retain the executive orders issued
by their predecessors, replace them with new ones of their own, or revoke the
old ones completely. In extreme cases, Congress may pass a law that alters an
executive order, and they can be declared unconstitutional and vacated by the
Supreme Court.
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Neil, page 3:
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Deering and Maltzman, page 767
http://psclasses.ucdavis.edu/pol106/Readings/deering-maltzman-prq1999.pdf
[Note that correct source is given at end of one sentence by Neil, but no
indication is given of when the source is being directly quoted]
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Conventional wisdom suggests that Presidents use executive
orders, sometimes characterized as presidential legislation, when legislation
is too difficult to pass. According to this model, executive orders are
strategic instruments used by a President to circumvent the constitutionally
prescribed policymaking process. Presidents do use executive orders to
circumvent a hostile Congress, but not if they are likely to be overturned by
Congress. (Deering and Maltzman, 1999, p767).
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Conventional wisdom suggests that Presidents use executive
orders, sometimes characterized as presidential legislation, when legislation
is too difficult to pass (in the face of an opposition Congress, for example)
or when executive departments or agencies tend to embrace their congressional
patrons, rather than the White House. According to this model, executive
orders are strategic instruments used by a President to circumvent the
constitutionally prescribed policymaking process. Recently studies have found
little systematic evidence that executive orders are used to circumvent a
hostile Congress. We argue that strategic Presidents do use executive orders
to circumvent a hostile Congress, but not if they are likely to be overturned
by Congress.
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Neil, page 3:
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Deering and Maltzman, page 767-8
[Note that correct source is given by Neil at end of one
sentence, but no indication is given of when the source is being directly
quoted]
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In 1793, President George Washington issued an executive
order declaring American neutrality in the war between France and England.
Washington’s use of an executive order was a strategic choice, as he believed
that Congress was unlikely to embrace his position. This was not the last
time that a President used an executive order to accomplish policy goals.
Indeed, since Abraham Lincoln signed the first numbered order, Presidents
have since issued in excess of 13,000 orders. (Deering and Maltzman,1999,
p768).
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In 1793, President George Washington issued an executive
order declaring American neutrality in the war between France and England. At
the time, Washington’s order was seen as a pro-British move, since the 1788
Treaty with France required the colonies to defend French interests in North
America. Washington’s use of an executive order was a strategic choice, as he
believed that Congress was unlikely to embrace his position (Pious 1979: 51).
This was not the last time that a President used an executive order to accomplish
policy goals. Indeed, since Abraham Lincoln signed the first
"numbered" order, Presidents have issued in excess of 13,000 more.
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Neil, page 3:
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Deering and Maltzman, page 769:
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Because Presidents issued more executive orders under
unified than divided government, (Skull, 1997,p103) it can be concluded that
executive orders are primarily a vehicle for reinforcing legislative
victories rather than circumventing a hostile Congress.
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Because Presidents issue more executive orders
underunified than divided government, Shull (1997: 103) concludes that
executive orders are primarily a vehicle for reinforcing legislative
victories, rather than circumventing a hostile Congress.
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Neil, page 3
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Deering and Maltzman, page 770:
[Note that Neil does mention the source, but does not indicate
when he is quoting directly from it]
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All things equal, Presidents should prefer the permanence
of legislation to the potentially ephemeral character of executive action. Of
course, Presidents cannot always secure their preferred policy outcomes in
the legislative arena and thus are forced to calculate the viability of
executive action. (Deering and Maltzman, p 770).
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Thus, all things equal, Presidents should prefer the
permanence of legislation to the potentially ephemeral character of executive
action. Of course, Presidents cannot always secure their preferred policy
outcomes in the legislative arena and thus are forced to calculate the
viability of executive action.
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Neil, page 3:
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Deering and Maltzman, page 770:
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The expense of executive orders stems from the damage done
to a President’s “professional reputation” if Congress passes legislation
that effectively overrides an order (Neustadt, 1990). Both the benefit of
circumventing Congress and
the potential costs for doing so are likely to enter into
Presidential calculations in deciding whether and how often to issue
executive orders (Sala 1998; Moe and Howell 1998).
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The expense of executive orders sterns from the damage
done to a President's "professional reputation" if Congress passes
legislation that effectively overrides an order (Neustadt 1990). Both the
benefit of circumventing Congress and the potential costs for doing so are
likely to enter into presidential calculations in deciding whether and how
often to issue executive orders (Sala 1998, Moe and Howell1998).3
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Neil page 3:
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Deering and Maltzman, page 770, footnote 3:
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These cost-benefit calculations pervade other areas of
presidential decision-making. For example, fear of establishing a pattern of
failure leads Presidents to be more reluctant to veto a bill after they have
had a veto overridden (Copeland 1983). Presidents fear both the political
cost associated with having a veto overridden and the cost associated with a
“fall in his reputation for effectiveness, for not carrying out a public
threat to veto.” (Matthews 1988,p348).
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These cost/benefit calculations pervade other arenas of
presidential decision-making. For example, fear of establishing a pattern of
failure leads Presidents to be more reluctant to veto a bill after they have
had a veto overridden (Copeland 1983). Presidents fear both the political
cost associated with having a veto overridden and the cost associated with a
"fall in his reputation for 'effectiveness,' for not carrying out a
public threat to veto" (Matthews 1988: 348).
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Neil, pages 3-4:
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Deering and Maltzman, pages 770-771:
[Note that Neil does mention the source correctly at the
end of one sentence, but does not indicate when he is quoting directly from
it]
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In short, a Presidents willingness to issue an executive
order depends upon both his positive power to get legislation enacted by
Congress and his negative power to stop legislation overturning such an
executive order. Viewed in this light, presidential decisions regarding
executive orders reflect strategic calculations. A President may find it
difficult or impossible to change the status quo via legislative action. But
in these same circumstances he may be able to maintain an executive order
against hostile legislative action with judicious use of the veto. Under such
conditions, an executive order will be the preferred institutional device for
pursuing presidential policy goals. (Deering and Maltzman,1999, 770-771).
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In short, a Presidents willingness to issue an executive
order depends upon both his positive power to get legislation enacted by
Congress and his negative power to stop legislation overturning such an
executive order. Viewed in this light, presidential decisions regarding
executive orders reflect strategic calculation. A President may find it
difficult or impossible to change the status quo via legislative action. But
in these same circumstances he may be able to maintain an executive order
against hostile legislative action with judicious use of the veto.
Under such conditions, an executive order will be the
preferred institutional device for pursuing presidential policy goals.
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Neil, page 4:
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Page 445.
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Presidents have limited capacity to act unilaterally or
make policy decisions on their own. An executive order is a presidential
directive that requires or authorizes some action within the executive
branch.
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…. presidents have
limited capacity to act unilaterally or make policy decisions on their own.
… An
executive order is a presidential directive that requires or authorizes some action within
the executive branch.
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Neil, page 4:
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Mayer, page 446
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The importance of executive orders can be inferred from
even a few cases that had profound consequences:
§ Internment
of Japanese-Americans during World War II. Forcing 100,000 Japanese-
Americans into concentration camps and having their property confiscated.
(Roosevelt, Executive Order 9066, February 19,1942)
§ Integration
of the armed forces (Truman, Executive Order 9981, July 26, 1948)
§ Requirement
that government contractors implement affirmative action policies in
employment practices. (Kennedy, Executive Order 10925, March 6, 1961;
Johnson, Executive Order 11246, September 24, 1965)
§ Requirement
that major government regulations be justified by cost-benefit analysis
(Regan, Executive Order 12291, February 17, 1981)
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The importance of executive orders can be inferred from
even a few cases that had profound consequences:
…
• Internment of Japanese-Americans during World War II
(Roosevelt, Executive Order 9066, February 19, 1942)
• Integration of the armed forces (Truman, Executive Order
9981, July 26, 1948)
• Requirement that government contractors implement
affirmative action policies in employment practices (Kennedy, Executive Order
10925, March 6, 1961; Johnson, Executive Order 11246, September 24, 1965)
• Requirement that major government regulations be
justified by cost-benefit analysis (Reagan, Executive Order 12291, February
17, 1981)
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Neil, page 4:
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Mayer, page 448
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Executive orders have legal force only when they are based
on the president’s constitutional and statutory authority (Fisher
1991,p.109). Yet, presidents take an expansive view of their own power when
it suits them, and use executive orders to expand the boundaries of their
authority. The courts typically stay out of the presidents’ way, upholding
executive orders even when they are “of – at best – dubious constitutional
authority . . . [or] issued without specific statutory authority”. (Fleishman
and Aufses, 1976,p5).
Between 1789 and 1956, state and federal courts overturned
16 executive orders (Schubert 1957,p 361-65); Youngstown Steel and Tube v.
Sawyer )343 US 579, 1951), which overturned Truman’s seizure of the nation’s
steel mills, which is undoubtedly the most famous. Executive orders thus
provide an important window into presidential power: they are unique hybrid,
as they constitute a potential reservoir of independent authority, but one
that presidents do not use without regard to circumstance or consequence.
(Mayer, 1999,p 448).
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Executive orders have legal force only when they are based
on the president's constitutional or statutory authority (Fisher 1991, 1 09).
Yet, presidents take an expansive view of their own power when it suits them,
and use executive orders to expand the boundaries of their authority. The
courts typically stay out of the president's way, upholding executive orders
even when the [sic] they are "of-atbest-dubious constitutional authority
. . . [or] issued without specific statutory authority" (Fleishman and
Aufses 1976, 5). Between 1789 and 1956, state and federal courts overturned
only 16 executive orders (Schubert 1957, 361-65); Youngstown Sheet and Tube v. Sawyer (343 U.S. 579, 1951), which
overturned Truman's seizure of the nation's steel mills, is undoubtedly the
most famous.
…
Executive orders thus provide an important window into
presidential power: they are a unique hybrid, as they constitute a potential
reservoir of independent authority, but one that presidents do not use
without regard to circumstance or consequence.
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Neil, page 4-5:
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Mayer (1999), pages 450 and 451:
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Presidents, when they take office,
usually try to place their immediate stamp on executive branch processes and
policies. Executive orders are an excellent way to do this, since they allow presidents
to alter organizational relationships and administrative routines.
Presidents have issued numerous
significant orders early in their administrations. Clear examples of this
practice are Reagan’s Executive Order 12291, which he issued three weeks into
his first term, and Clinton’s Executive Order 12836, issued in his second
week, revoking two Bush era orders that were unpopular with labor unions
(Novak, 1992,p 2764). The incentive to make changes will be greater when
party control of the White House has changed, as incoming presidents
distinguish themselves from their predecessors and “hit the ground
running”.(Pfiffiner, 1996)
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Presidents, when they take office, usually try to place
their immediate stamp on executive branch processes and policies. Executive
orders are an excellent way to do this,
since they allow presidents to alter organizational relationships and
administrative routines. …. presidents have issued numerous significant
orders early in their administrations. Clear examples of this practice are
Reagan's Executive Order 12291, which he issued three weeks into his first
term, and Clinton's Executive Order 12836, issued in his second week,
revoking two Bush-era orders that were unpopular with labor unions (Novak
1992, 2764). The incentive to make changes will be greater when party control
of the White House has changed, as incoming presidents distinguish themselves
from their predecessors and "hit the ground running" (see Pfiffner
1996 on presidential transitions generally).
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Neil, page 5:
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Mayer (1999)
page 452: [note that Neil does give the source at the end
of one sentence, but does not indicate he is quoting directly from it]
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For the same reasons, presidents who have low levels of
public approval may be more likely to resort to executive orders. Doing so
offers a way of getting around other institutional actors who might be
emboldened in their opposition to what they perceive as a weak White House, and
also provides presidents with a method of position taking, framing policy
questions, or delivering on promises made to key constituencies.
(Mayer,1999,p 452).
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For the same reasons,
presidents who have low levels of
public approval may be more
likely to resort to executive orders.
Doing so offers a way of getting around other institutional actors who might be emboldened in their
opposition to what they
perceive as a weak White House,
and also provides presidents
with a method of position-taking, framing policy
questions, or delivering on promises made to key constituencies.
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Neil, page 6:
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The greatest fear the founders of this nation had was the
establishment of a strong central government and a strong political leader at
the center of that government. They no longer wanted kings, potentates or
czars; they wanted a loose association of states in which the power emanated
from the States and not from the central government.
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The greatest
fear the founders of
this nation had was the establishment of a strong central government and a strong political leader at the center of that government. They no longer wanted kings, potentates or czars,
they wanted a loose association ... the power emanated from the States
and not from the central government.
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Neil, page 6:
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Compare to:
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Many of the fears of the founding fathers may now be
coming to fruition. Today, the executive branch of the government is
immensely powerful, much more powerful than the founding fathers had
envisioned or wanted. Congressional legislative powers have been usurped.
There is no greater example of that usurpation than in the form of the
presidential executive order. The process totally by-passes Congressional
legislative authority and places in the hands of the President almost
unilateral power.
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Many of the fears of the founding fathers
may now be coming to fruition. Today, the executive branch of the government
is immensely powerful, much more powerful than the founding fathers had
envisioned or wanted. Congressional legislative powers have been usurped. There
is no greater example of that usurpation than in the form of the Presidential
Executive Order. The process totally by-passes Congressional legislative
authority and places in the hands of the President almost unilateral power.
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Neil, page 6:
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[note that Neil does correctly cites the source, but does
not indicate when he is quoting directly from it]
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Without Congressional approval, the President now has the
power to transfer whole populations to any part of the country, the power to
suspend the Press and to force a national registration of all persons. The
President, in essence, has dictatorial powers never provided to him under the
Constitution. The President even has the power to suspend the Constitution
and the Bill of Rights in a real or perceived emergency. (Martin, 1995).
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Without Congressional approval, the
President now has the power to transfer whole populations to any part of the
country, the power to suspend the Press and to force a national registration
of all persons. The President, in essence, has dictatorial powers never
provided to him under the Constitution. The President has the power to
suspend the Constitution and the Bill of Rights in a real or perceived
emergency
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Neil, page 6-7:
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[Source is correctly cited, but just at the end of one
sentence. Neil does not indicate when he
is quoting directly form that source and appear to misconstrue what the
source said, i.e., source said “it answers none of” whereas Neil claims the
source indicating that “it answers more of ”]
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In fact, President Obama, in his second full day in
office, issued three major executive orders dealing with detention and
interrogation in the war on terrorism. The orders were received as major
policy shifts in counterterrorism law and strategy, actually varying a great
deal in their consequence. The most eagerly anticipated one, which orders an eventual
closure of the detention facilities at Guantanamo Bay, Cuba, is actually far
less significant than it may appear.
It is also far less important than the interrogation order
that President Obama signed along with it. In conjunction with a companion order
establishing a task force to study the future of detention policy, it answers
more of the major detention policy questions facing America. Obama’s
executive detention order is careful to preserve all options for each
detainee and offers the new administration a great deal of wiggle room.
(Wittes, 2009).
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President Obama, in his second
full day in office, has issued three major executive orders dealing with
detention and interrogation in the war on terrorism. The orders, which have
been received as major policy shifts in counterterrorism law and strategy,
actually vary a great deal in their consequence. The most eagerly anticipated
one, which orders an eventual closure of the detention facilities at
Guantánamo Bay, Cuba, is actually far less significant than it may appear. It
is also far less important than the interrogation order that Obama signed
along with it. In conjunction with a companion order establishing a task
force to study the future of detention policy, it answers none of the major
detention-policy questions facing America today. Instead, it merely sets up a
process by which policymakers will do so over the next year.
… This
paragraph offers the new administration a great deal of wiggle room.
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Neil, page 7:
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Compare to:
[note that Neil does correctly mention the source at the
end of one sentence, but does not indicate when he is quoting directly from
it]
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President Obama is not only contemplating preserving
rendition, he foresees using it more than the Bush administration. The order
also allows an exception for “facilities used only to hold people in
short-term transitory basis.” What constitutes “short-term” is not defined.
This provision will allow the CIA’s secret prison system
to function more or less as it did in the Bush administration. While under
the Bush administration, prisoners could not be held indefinitely in CIA-run
black holes, in many cases, CIA prisons – many of which were located in
eastern Europe – acted as way stations for prisoners who were to be shipped
off to regimes where the abductees were subjected to torture.
In relationship to the use of torture by the U.S. military
and the CIA, he has proposed the creation of a task force that would study
ways of changing the manual to allow for new forms of interrogation. (Eley,
2009).
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Obama is not only contemplating preserving rendition; he foresees
using it more than the Bush administration. …
Meanwhile, Obama's order ostensibly shutting down the CIA's network
of secret prisons allows an exception for "facilities used only to hold
people in short-term, transitory basis." What constitutes
"short-term" is not defined.
This provision will allow the CIA's secret prison system to function
more or less as it did in the Bush administration. While under the Bush
administration prisoners could be held indefinitely in CIA-run black holes,
in many cases the CIA prisons—many of which were located in eastern
Europe—acted as way stations for prisoners who were to be shipped off to
regimes where the abductees were subjected to torture.
…
In relationship to the use of torture by the US military and the
CIA, Obama left himself ample room for maneuver. While one order claimed to
end forms of interrogation not sanctioned by the Army Field Manual, Obama has
proposed the creation of a task force that would study ways of changing the
Manual to allow for new forms of interrogation.
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Neil, page 7:
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Mayer [1999], page 462
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Executive orders are important to presidents, and their
use reflects much more than simple administrative routines or random noise.
Presidents use them to make substantive policy, exercise emergency powers,
strengthen their control over executive branch agencies and administrative
processes, emphasize important symbolic stances, and maintain electoral and
governing coalitions.
The president’s power to make policy through executive
orders has grown along with, and has reinforced, the expansion of executive
branch responsibilities. Some of this authority has been delegated to the
president by Congress, but presidents have also simply assumed unilateral
policymaking powers, especially in national security and foreign policy
matters. (Koh 1990; Fisher 1995).
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Executive orders are important to presidents, and their use reflects much more than simple administrative routines
or
random
noise. Presidents use them to make substantive policy, exercise emergency powers, strengthen
their control over executive
branch agencies and administrative processes,
emphasize
important
symbolic stances, and
maintain their electoral and governing coalitions.
…
The president's power to make policy
through executive orders has grown
along with, and has reinforced, the expansion of executive branch
responsibilities. Some
of this authority has been delegated to the president by Congress, but presidents have also simply
assumed unilateral policymaking powers, especially in national security and foreign policy
matters (Koh 1990; Fisher 1995).
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