President Donald Trump has signed an executive order to temporarily suspend immigration into the United States. A validly authorized executive order, although not a statute, is enforceable law. Presidents of both political parties have used them to accomplish political objectives they deem desirable. 

Increasingly, it seems as though presidents, and candidates running to be president, are asserting that they can take executive actions to effectuate policies that Congress will not or may not enact. In effect, presidents are making or threatening to make law on their own. 

Back in January of 2014, NPR reported: “President Obama has a new phrase he’s been using a lot lately: ‘I’ve got a pen, and I’ve got a phone.’

“He’s talking about the tools a president can use if Congress isn’t giving him what he wants: Executive actions and calling people together. It’s another avenue the president is using to pursue his economic agenda.” 

“I am going to be working with Congress where I can to accomplish this, but I am also going to act on my own if Congress is deadlocked,” Obama said. 

“I’ve got a pen to take executive actions where Congress won’t…”

It seems as though presidents, and candidates running to be president, are asserting that they can take executive actions to effectuate policies that Congress will not or may not enact. In effect, presidents are making or threatening to make law on their own. 

Perhaps the most ignored (“violated” would probably be a more accurate word to use) provision of the U.S. Constitution is Article I, Section 1: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

This provision is an essential part of the constitutional design for the separation of powers. The separation of powers is a doctrine of constitutional law designed to protect against the accumulation of excessive power in any single branch of government. By separating the legislative, executive, and judicial branches of government, the Framers of the Constitution sought to protect the people from tyrannical government. Each branch of government would be a check upon the other two branches of government. To put it somewhat more colloquially, no one person (or branch of government) could be judge, jury and executioner.

An essential corollary of that doctrine was the “non-delegation” doctrine under which one branch of government could not delegate its constitutional authority to one of the other branches. Basically, that means, for example, that judges in criminal cases could not delegate their judicial authority to the prosecutors. While I know of no instance of that happening, there are numerous instances of the legislative branch delegating its lawmaking authority to the president and to administrative agencies.

Lawmaking, however, is a legislative function, and the Constitution vests all legislative power in the Congress. There is not one single word in the Constitution about “executive orders.” The president’s constitutional authority is to “take Care that the Laws be faithfully executed.”

Increasingly, however, we see presidents asserting that if Congress does not do what they want, they will go around Congress, and do things via executive orders. They are able to do so in many instances, because Congress has delegated broad lawmaking authority in statutes. Not since the Great Depression has the Supreme Court held that a delegation of broad lawmaking power to the president violated the non-delegation doctrine, and was, thus, unconstitutional. 

Lawmaking, however, is a legislative function, and the Constitution vests all legislative power in the Congress. There is not one single word in the Constitution about “executive orders.”

However, broad delegations of lawmaking authority defeat the deliberate process for making law set out in the Constitution. To make a law, Congress needs to have a bill passed by both chambers of Congress and signed by the president. To repeal that law, Congress needs to go through the same process, and again get presidential approval. Neither chamber of Congress can, on its own, either make or repeal a law, once enacted. But if Congress delegates to the president the authority to make a law in an area, the president can do so, or not do so, and can unmake the law all on his own. In effect, Congress can delegate to the president (or to an administrative agency) authority with regard to lawmaking that it does not itself have. 

In 1935, in the case of Panama Refining Co. v. Ryan, the Supreme Court said: 

“The Congress manifestly is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is thus vested. Undoubtedly legislation must often be adapted to complex conditions involving a host of details with which the national legislature cannot deal directly. The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply.”

In essence, the Court was saying that for a delegation of lawmaking power to be Constitutionally valid, there had to be a reasonably clear standard to govern the delegated discretion. There could not be a “grant to the Executive of any roving commission to inquire into evils and then, upon discovering them, do anything he pleases.”

Emergency decrees are how people lose their freedom.

In recent years, however, courts have upheld almost limitless grants of lawmaking authority to the president and administrative agencies. The result has been to empower in a single entity the authority to make and enforce a law, and even to adjudicate alleged violations of that law. In some instances, rather severe penalties can be imposed for violations of those regulations. 

We, as a free people, need to be especially wary of executive authority, whether taken by the president, a state governor, or a city mayor during times of emergencies such as we now face. Emergency decrees are how people lose their freedom.

Howard Lurie is an Emeritus Professor of Law, Charles Widger School of Law, Villanova University

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