pudge's Journal: Executive Orders Are Not Laws

In the recent flap over Cheney and the Executive Order for the National Archives, there's been talk that Cheney violated the law.

He didn't. At least, not by virtue of not following an Executive Order.

An Executive Order is not a law. The Constitution never gave the President authority to create such laws. There are no criminal or civil penalties for not following an Executive Order (though there could, of course, be penalties for other things: for example, violating an Executive Order could in some cases also be considered actions that constitute fraud, or treason, or some other statute).

All executive authority is vested in the President. The Constitution says so, in the opening words to Article II. Executive Orders, legally speaking, are merely a formal way the executive may use to express to the rest of the Executive branch what it is supposed to do, or not do. This can be done more informally through memos or personal conversations, none of which have any more or less legal standing than Executive Orders do.

And because all executive authority is vested in the President, and Executive Orders only govern executive functions, the President alone is charged with interpreting and enforcing Executive Orders. So if he wants to say "I do not interpret this order to apply to Cheney," it therefore does not. Or if he says, "I told Dick in a private conversation that he didn't have to follow it," that is more than sufficient. He can even say, "I thought it applied to Dick, but after the fact we talked about it, and I changed my mind: he doesn't have to follow it in the future, and this applies retroactively."

That also means that the President cannot be bound by Executive Orders. How does it make sense to say that the President has all executive authority, but that he can be forced to comply with an Executive Order? The Executive Order has no authority except via the President. The Order cannot have greater authority than the President. Again, these are not laws. It's similar to the Senate, which gets to make up its own internal rules, which no one else has any say over. You can't take legal action against the Senate for not following its own written rules. No one else has any authority in this regard. The Senate can choose to follow, or not, its own rules at any time.

All of that is entirely, perfectly, legally, reasonable.

Now, you can say you don't like the substance: you think this particular regulation SHOULD apply to Cheney. That's fine. You can also think Cheney's reason for not following it is nonsense (that because he is also in the legislative branch, he therefore is not solely in the executive branch, and any regulations for people "in the executive branch" do not apply to him; the more I think about it the more I think he has a point, though: what if some of his documents are specifically legislative branch documents? Why should those be governed by executive orders, any more than Harry Reid's legislative documents should be?). (Similarly, you can think the Senate SHOULD follow its own written rules, even though it is not required to.)

But regardless of any of those disagreements, the facts still stand that it is not against the law to violate an Executive Order (except the broad claim that you are undermining the authority of the Executive, which itself is not actually a law, though it is a Constitutional principle), that the President has full authority to say that the Order in question has not been violated or will not be enforced, and that there's no criminal or civil penalty for violating an Executive Order.

I am not even sure what anyone could do even if Bush held that Cheney did violate an Executive Order. Cheney can't be fired: he's an elected officer. Bush could, of course, kick Cheney out of the loop and take away all of his executive responsibilities, except for those mandated by the Constitution, which don't take effect until the President is incapacitated. I suppose the only other thing is that he could be impeached, which would be unlikely to happen on the basis of an Executive Order if the President said the Vice President did nothing wrong, but if the President supported the impeachment, then it very well could happen.

I still think...

[MousePotato]

To quote from "Who Framed Roger Rabbit?";

"This thing stinks like yesterdays diapers!!!"

The shrub company, et al. seems to be able to engineer unique excuses and methods to skirt around sooooo many rules, orders and procedures. Its a wonder to me why they just don't take a lesson from Putin and declare themselves in charge from this point forward. After all, W is the "decider guy" and in his obtuseness to all things advised to him that don't go along with his thinking he might just as well.

sorry... just had

Re:

[pudge]

he shrub company, et al. seems to be able to engineer unique excuses and methods to skirt around sooooo many rules, orders and procedures.

What has that got to do with this? The President says this order does not apply to Cheney, so therefore it does not. That's what the Constitution says.

Re:

[MousePotato]

You're right it has nothing to do with this. Monday mornings are ruff starts on the brain... 5 am and like 3 hours of sleep...

For the past couple of days the radio (airamerica for example) has been pointing out (more like harping to no end) how convenient it is that they VP has been unofficially sequestered from the 'executive branch' and even his boss finds the rules not relevant to either one of them. I think thats what really bugs me about it; the ability to make rules/orders/what have you and then say '

Re:

[pudge]

For the past couple of days the radio (airamerica for example) has been pointing out (more like harping to no end) how convenient it is that they VP has been unofficially sequestered from the 'executive branch' and even his boss finds the rules not relevant to either one of them.

And when those "rules" are rules that are subject only to the discretion of the President, that's OK. I see nothing at all wrong with that.

Now, you can say that you disagree with the policy, that Cheney's executive branch documents SHOULD be covered by the National Archives. But in the abstract, there's nothing wrong with the President saying "[insert rule here] doesn't apply to me and Dick, who are, after all, the only two elected officials in the entire Executive Branch," as long as that rule is at the

Incorrect

[jamie]

You write...

(pudge:) An Executive Order is not a law.

Really?

executive order [law.com] (The People's Law Dictionary, by Gerald and Kathleen Hill)

n. a President's or Governor's declaration which has the force of law, usually based on existing statutory powers, and requiring no action by the Congress or state legislature.

regulation [bartleby.com] (American Heritage Dictionary of the English Language, 2000)

n. 3. A governmental order having the force of law. Also called executive order.

executive orders [answers.com] (The Oxford Guide to the United States Government, 2002)

Execu

Re:

[pudge]

You write...

(pudge:) An Executive Order is not a law.

Really?

Yes, really.

Dictionaries are stupid and I won't bother addressing them as relevant in any way. So, skipping ahead ...

478 F. Supp. 646 (D.P.R. 1979) [achp.gov] (summary paraphrase)

On the merits, the district court concluded that the sampling method used in the survey provided an unbiased sample of the archeological sites on the entire island, 478 F. Supp. at 693 n.105, but that the Navy's failure to nominate or seek eligibility determinations for the newly discovered sites was a violation of Executive Order No. 11593. The court found that Executive Order No. 11593 has the force of law and its violation may be privately enforced.

Sure. I said an Executive Order is not a law, NOT that SOME executive orders CANNOT have the force of law. Indeed, I explicitly stated that some could.

So it looks like you're wrong about that.

Nope. You provided only dictionary definitions I ignored, and one citation that didn't say what you think.

(pudge:) The Constitution never gave the President authority to create such laws.

Really?

Yes.

Absent specific statutory authority, an executive order may have the force and effect of law if Congress has acquiesced in a long-standing executive practice that is well-known to it. For example, in Dames v. Regan, 453 U.S. 654, 101 S. Ct. 2972, 69 L. Ed. 2d 918 (1981), the U.S. Supreme Court upheld various executive orders that suspended claims of U.S. nationals arising out of the Iranian hostage crisis, citing Congress's acquiescence in a 180-year-old practice of settling U.S. citizens' claims against foreign governments by executive agreement.

That is, actually, slightly beside the point. However, it is a good example of what I pointed out above: that EOs can have t