Obama on Executive Orders, Executive Power

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Obama transition team chief John Podesta recently indicated that Obama's advisers were reviewing Bush executive orders and that the new president was considering reversing some Bush orders. Podesta noted that "there's a lot that the president can do using his executive authority without waiting for congressional action." The statements sparked a discussion about executive orders and generally about Obama's views on presidential power.

Executive Orders

Executive orders are are not an extra-ordinary use of presidential power; since the administration of Teddy Roosevelt each chief executive has issued hundreds of these orders, with FDR issuing thousands in response to the Great Depression. In theory as well as ordinary practice, they are not a legislative power; they only direct the existing executive departments and agencies to exercise their powers in conformance with the executive order, within the confines of existing legislation and established presidential power. This is not to say that they can do things Congress might not agree with; in 1948 President Truman signed Executive Order 9981 integrating the US armed forces when there was no way that a similiar law would have made it out of the Senate. Nonetheless, it was a fully constitutional exercise of his power as commander-in-chief.

Executive orders are not secret; they are published in the Federal Register when issued and active EOs are collected annually in volume 3 of the Code of Federal Regulations. Even more convenient for Podesta and company, the National Archives has collected and created a directory page and subject index for all of President Bush's EOs at http://www.archives.gov/federal-register/executive-orders/wbush.html. From the Afghanistan campaign medal to the blocking of Zimbabwe assets in the US, all 262 Bush executive orders can be reviewed.

Executive Power

The Podesta announcement also raised speculation on Obama's view of the scope of executive power. With some accounting for the fact that presidential powers look bigger from the Oval Office than suite 714 of the Hart Office Building, there is a very good summary of Obama's view in a questionaire that Boston Globe reporter Charlie Savage sent all the candidates last December. The Q/A relates each candidates views on the constitution and the president's constitutional powers. What is interesting is that despite being involved in a primary campaign involving Democratic party activists who depised President Bush's questional assertion of vast wartime powers, Obama's answers are relatively moderate in both tone and substance. For example, he refuses to totally swear off the use of presidential signing statements; he (rightly) condemns the use of such statements to negate the law being signed, but allows for the traditional use of the statements to "clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law," and--this is the type of ambiguity that is worrisome to some--"to protect a president's constitutional prerogatives." Nonetheless, Obama rejects most of Bush's more eyebrow-raising assertions of presidential power and he foreshadows the recent announcement that his administration would close the extralegal prison at Guantánamo Bay.