About this video
Executive orders are directives issued by the president that can have the force of law. Presidents justify them using Article II's Vesting Clause and Take Care Clause, and have used them for major actions like the Emancipation Proclamation, Japanese American internment and Truman's seizure of steel mills. The Supreme Court can check them by ruling them unconstitutional, as in Youngstown Sheet and Tube Co. v. Sawyer.
You'll be able to
- explain what an executive order is and where its constitutional justification comes from.
- describe significant executive orders in US history and their impact.
- explain how the Supreme Court can check executive orders.
Key words
- executive order
- A directive issued by the president that can have the force of law.
- Vesting Clause
- Article II, Section 1, which says executive power is vested in the president.
- Take Care Clause
- Article II, Section 3, which says the president shall take care that the laws be faithfully executed.
- Emancipation Proclamation
- Lincoln's 1863 executive order that freed nearly three million enslaved people in the Confederate states.
- implied powers
- Powers not written out explicitly but argued to come from the Constitution's broader wording.
Transcript
- [Lecturer] What we're going to discuss in this video is Executive Orders. And these are directives being issued by the President of the United States that can have the force of law. And I know what you're thinking, isn't Congress our legislative body, the body that actually creates the laws?
And is it the job of the President to be the head of the Executive Branch to execute on those laws? And if you are thinking that, you are correct. But going all the way back to George Washington, Presidents have issued Executive Orders. Some are fairly lightweight.
They might be a directive for something to be done in a certain way, or a small regulation, or even appointing someone to a job. But sometimes these Executive Orders can be quite significant. And the constitutional justification for these Orders come mainly from two different statements in Article II of the U.S. Constitution.
In Section One, it starts off saying, "The Executive Power shall be vested in a President "of the United States of America." And at the end of Section Three, it says that, "the President shall take care that the laws "be faithfully executed." And so, the clearest justification for an Executive Order are times when a regulation is needed or a directive is needed in order to faithfully execute the laws.
But as we will see, Presidents throughout history have really pushed the boundary here and have definitely gone into territory that you might expect to be the area of Congress. Now in terms of appreciating how frequent these Executive Orders are, here is a chart that gives the average Executive Orders per year for the last few Presidents.
And you can see at the low end, you have President Obama and President George W. Bush averaging about 35 or 36 Executive Orders per year. And then all the way at the high end, you get to Gerald Ford and Jimmy Carter. Now if you were to go even further back in history, Presidents like Franklin Roosevelt had far more Executive Orders than even this.
And just to appreciate some of the most significant Executive Orders ever made, Lincoln's Emancipation Proclamation in 1863 which was delivered during the Civil War, it freed nearly three million slaves in the Confederate states. In 1942 a few months after Japan's bombardment of Pearl Harbor, Franklin Roosevelt issues Executive Order 9066 which called for the internment of Americans of Japanese ancestry.
Historians have really frowned on this Executive Order because it was a blatant disregard for the rights of these Americans. But at the time, Franklin Roosevelt justified it as a national security issue. And then in 1952 during the Korean war, steel workers are threatening to go on strike.
And so, President Truman issues Executive Order 10340 that puts steel mills under the control of the Commerce Secretary. And the justification here was that they were in the middle of the war and that steel is an essential material for conducting the war. Now what's really interesting about this Executive Order, is that the owners of the steel mills did not like this and they take the government to Federal court.
It eventually gets to the U.S. Supreme Court. It's knows as the case, Youngstown Sheet and Tube Company versus Sawyer where Sawyer was the Commerce Secretary. And the Supreme Court rules against President Truman saying that this Executive Order went beyond the bounds of even the President's implied powers.
So the big picture here is that Executive Orders are a method by which Presidents over time have been able to expand their power beyond what is explicitly listed in Article II of the Constitution. Now like in all things, there is a check on that power. And much of that comes from the Supreme Court's ability to rule Executive Orders unconstitutional.
But there still aren't clear boundaries on what makes an Executive Order constitutional or not. And they are likely to continue to be an area of debate when it comes to powers of the President.
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