Direct Authority

What are Executive Orders?

They aren’t laws but they carry the weight of one as the President can issue with out consultation of approval from Congress - they’re enforced like laws and are subjected to Judicial review by the Judiciary ensuring they are within the limit of the constitution.

Who can invalidate executive orders?

The courts can strike out ExO if the President is overreaching their power and the next President can eliminate the ExO

When are executive orders used?

• Sometimes a president feels the need to exert power without the support of Congress

• In times of crisis quick decisions can be justified

• Most executive orders are directed towards agencies in the federal government in order to expand or contract their power

• Other determine the extent to which legislation should be enforced

• A president can use an executive order to clarify a piece of legislation

What are the key examples of executive orders?

• Truman - de-segregating the army in 1948

• FDR issued over 3500 executive orders

• Obama - lawful Interrogations - reserving Bush’s methods against terrorists. Guantanamo Bat - failure to shut it as Congress didn’t give money for it. He issued 30 Executive Orders in the first 200 days

• Trump ended Birth right citizens; the freezing of funding for USAID; Dismantling the Education Agency and new travel ban in 2025 that was lifted by previous administration

• Biden removed levels of student debt but the Supreme court challenged this; He set the ethics code for lobbying though ExO and he rescinded the Muslim travel ban

What section of the constitution vaguely allows Executive Orders to occur?

Presidents can ‘faithfully protect’ their people through ExO (ambiguous executive power)

What was the importance of Trump’s ExO on the separation of families?

• In 2017, Trump issued an executive order which would separate immigrant parents and children if they travelled to the US illegally (deterrence method)

• He then rescinded it after the negative public backlash - public pressure can impact a President’s decision

What are the positives of Executive Orders?

• Allows President to take action with force of laws

• Can break legislative deadlock - progress legislatively

• Lack of trust in politicians - the President can deliver on their mandates by making agencies more efficient

• Re-engage the public - makes the president look stronger

What are the limitations of Executive Orders?

• Judiciary can strike out - Trump’s birth right citizen ExO ban is currently in the Supreme Court

• Next incoming President can rescind it - Trump’s travel ban, the Paris Climate Convention

• Public reactions can hinder their effectiveness - Separation of families

• They’re limited in scope and can easily be overruled - Clinton in 1998 trying to change laws on Medicaid; the Supreme Court has been willing to overturn executive orders that exceed presidential authority or violate the Constitution

• Can cause further political tensions and increase chances of political tensions and increase chances of polarised politics

• Some executive actions are performative - Trump signing ExO with cameras

What are the other forms of Direct Authority?

• Signing statements

• Recess appointments

• Executive agreements

What are signing statements?

A statement made by a president on a bill which may challenge or support a specific provision of a bill

What are signing statements mainly used for in recent times?

They have been more controversial during recent times as it widely used to criticise Congressional laws but usually it is to celebrate it

What is an example of a positive signing statement?

Obama signing in the Hope Act in 2013, praising it.

What is the impact of signing statements?

Political impact - adds to Presidential power, can put pressure onto Congress, could create distance between Congress and Parliament (Congress needs the President in order to get laws through).

What are the key examples of signing statements?

• Obama put a signing statement on the Act concerning participation of Taiwan in the International civil Aviation Organisation 2013 questioning the constitutionality of having the secretary of state create certain diplomatic initiatives and report back to Congress. Obama stated that he wouldn’t accept this as it interferes with his constitutional authority,

• 81% of Bush’s signing statements questioned the constitutionality of bills

What are recess appointments?

• Temporary appointments made up by the President to fill vacancy while the Senate is in recess (Article II Section 2)

• The Senate usually confirms appointments and and scrutinise them in committees but Presidents have increasingly done to bypass this

• However, once Congress got back into session, the recess appointees would then have to be reconfirmed (limited time)

How has the Senate been able to prevent Recess Appointments?

The Senate has been able to prevent this by ensuring that Congress is never in recess by ensuring there are a few congress members working and available at all times

Who did Bush appoint during recess?

John Bolton (anti-UN) was appointed as the US ambassador for the UN

Which Supreme Court case banned recess appointments?

National Labour Relations Board v Noel Canning (2012) stated that recess appointments were exceeding the President’s constitutional powers and ended it.

What are Executive agreements?

Agreements between the president and a foreign nation on matters that do not require treaties and thus doesn’t need the Senate’s involvement

What are Executive Agreements usually used for?

Usually aspects of foreign policy such as regulating international trade, anti-terrorism acts (Trump and the Taliban in 2022)

What are the positive and negatives of Executive Agreements?

• Positives - Senate’s workload decreases

• Negatives - Bypasses enumerated powers of the Senate to ratify treaties

Why do Presidents use Executive Agreements?

• Fears that it won’t pass the Senate - polarisation makes this harder

• Partisanship and the president’s unwillingness to consult the Senate can lead to rejections -E.g: 1999 Nuclear Test Ban Treaty; Shinzo Abe deal with Trump agreement to trade with Japan; Iranian Nuclear Deal (JCPOA) in 2015 was done without congress