Wednesday, November 2, 2011


A question from my barber, a column of a fellow Bedan alumnus and President Obama’s recently issued Executive Orders prompted me to review my Constitutional and Administrative Law notes.

My barber asked about the independent and separate powers of government namely; Executive, Legislative and Judiciary.

The article of fellow Bedan alumnus Joseph Lariosa dealt with  “Legislating from the Oval Office” as well as  cases of judicial activism.

President Obama, who with his supporters are proclaiming “we can’t wait”, issued Executive Orders offering mortgage relief to some struggling homeowners and capping student loan payments. He also issued another Order  forcing community health centers to hire up to 8,000 military veterans. These are considered executive actions that do not require Congressional approval. This is a reaction to Congress’ inaction and delaying tactics.  Some critics would argue that it was an incursion into Congress’ legislative powers.

The U.S. Constitution provides for independent, distinct and separate Executive, Legislative and Judicial branches. The President, the Executive Departments, and the Administrative Agencies exercise executive powers. Congress has the legislative functions while the Supreme Court, the Appellate and the Lower Courts exercise the judicial powers.

But a careful study of the Constitution and Administrative law would show that there is really a commingling of the powers, which must have been envisioned by the founding fathers to provide checks and balances.

The making of treaty is an Executive function yet the U.S. Senate has to ratify it thus engaging in this Executive function.

Before a bill passed by Congress becomes a Federal law the President, as chief executive, has to sign it. If he vetoes it, 2/3 votes of Congress are needed to override it.

The Vice President is obviously part of the Executive department. Yet, he presides over the Senate and casts the vote in case of a tie.

The power of appointment is conceded as an Executive function, and yet, a Senate confirmation is required.

In impeachment trials, the Senate acts directly as a Judicial Court.

Columnist Joseph Lariosa in discussing  “judicial activism” or legislating from the bench, cited, “Brown v. Board of Education (1954), when the Supreme Court ordered the desegregation of public school; the Roe v. Wade (1973) when the Supreme Court decriminalized abortion; and Bush v. Gore (2000) when judges voted along ideological lines, 5-4, to halt the recount of ballots in Florida and, in effect, elect Bush President.”

Executive Orders are legislative in nature. Accessing the Federal Register, I found out that Reagan issued 380 EOs; Clinton, 363; and G.W. Bush, 290 during their 8 years in office. George H.W. Bush issued 165 in 4 years.

In a 1997 book entitled, “Constitutional Conflicts Between Congress and the President”, author Louis Fisher wrote ,
 “Much of the original legislative power vested in Congress is now exercised, as a practical matter, by executive agencies, independent commissions, and the courts. The President’s legislative power, invoked on rare occasions in the early decades, is now discharged on a regular basis throughout the year in the form of executive orders, proclamations, and other instruments of executive lawmaking.”

In an article that Fisher also wrote 10 years later, he describes the continuing conflict citing the following examples:
·                President Lincoln suspended the writ of habeas corpus, withdrew funds from the Treasury, called for the state militia and placed a blockade on rebellious states without Congressional approval;
·                President Harry Truman sent U.S. troops to South Korea without Congressional approval for authority, thus violating the Constitution, the Legislative history of the UN Charter, and the UN Participation Act of 1945, all of which required Truman to obtain approval from Congress before entering a foreign war;
·                President Bush used his “inherent” presidential powers to create military commissions, designate U.S. citizens as “enemy combatants”, condone torture in interrogations and conduct eavesdropping without warrants.”

Reviewing the provisions of the Administrative Procedure Act (APA), you will find out that many executive and administrative agencies actually exercise legislative and adjudicative powers. Adding their regular executive/administrative powers, they therefore exercise the commingled powers that should  be independent, distinct and separate.
Since almost all of these agencies are under the over-all supervision of the President, why is it that President Obama is still looking weak in the eyes of so many Americans?

Numbers tell the story. President Obama as of now has issued 94 Executive Orders. Unless he becomes more aggressive by virtue of a non-cooperating Congress, he would be issuing a total of 137 Executive Orders by the end of his term. That’s even less than the 165 orders issued by the older President Bush  in his 4 years of office.

I hope that President Obama’s  recent executive actions on mortgages, student loans, military veterans and community health centers are indications of a more aggressive and stronger President as the Constitution provides and as the American people expect.


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