How the hell are Executive Orders constitutional?

[donner]

So you're of the mind that SCOTUS is the final arbiter?

I'm pretty sure that it always has been, even in the time when it was making decisions about the founding fathers. Judicial review isn't a new thing. Plus, our system of checks and balances allows for circumventing the SCOTUS, it just takes a constitutional amendment. It's not easy and nor should it be, but it is possible.

 

[inactive]

If you knew more about VM and his posts over the years, you'd realize he can make an informative argument for why something is the way it is, despite if he agrees with it or not. He's simply explaining how things work, current-state. Doesn't mean he agrees with it or not.



But yea, the SCOTUS is the final arbiter. That's kinda how our system was designed, for better or worse. Don't like their stance? Then either enact constitutional change, or bring the issue forth again after new arbitrators are installed.

 

[freeranger]

If you knew more about VM and his posts over the years, you'd realize he can make an informative argument for why something is the way it is, despite if he agrees with it or not. He's simply explaining how things work, current-state. Doesn't mean he agrees with it or not.



But yea, the SCOTUS is the final arbiter. That's kinda how our system was designed, for better or worse. Don't like their stance? Then either enact constitutional change, or bring the issue forth again after new arbitrators are installed.

The heads up on VM is duly noted. As for the SC, I should have clarified that it is only the final arbiter on laws made "in pursuance thereof" of the enumerated powers. Many Federalists assauged the fear of the ratifiers that powers not delegated were retained by the states and people. Any law not enumerated, according to the historical records and debates, is null and void.

 

[mugsy]

The problem with Tenth Amendment arguments is that the arbiters of its applicability are the folks who would, essentially, be handing over their own power if they decide in favor of a 10A argument.

Possible other approach:
- We need to repeal the direct election of Senators and return it to State legislatures because this will restore a direct voice of the States, as independent political entities, in Washington D.C.

 

[vvvvvvv]

- We need to repeal the direct election of Senators and return it to State legislatures because this will restore a direct voice of the States, as independent political entities, in Washington D.C.

Problem with that is that prior to the passage of the 17th Amendment, 75% of Senators were elected by popular vote under state law rather than appointed by state legislatures. So do you propose an amendment that removes the right of the states to choose the process through which they appoint their officials?

When the Tenth Amendment folks talk about repeal of the 17th, they tend to leave out that little historical fact that proves that bypassing the Tenth would be required to reach their proposed ends in that particular arena.

 

[Old Fart]

All bets are off, the next couple years we will see a huge swing in the politics of SCOTUS.....the U.S. king will be crowned.

 

[TerryMiller]

I still need to do a bit of research on this, but I had heard that Obama had issued a phenomenal number of Executive Orders as compared to the other Presidents. Apparently not so, at least according to the Federal Register. He has actually been rather "conservative" with his number if this site is accurate. If the numbers are true, I'm shocked.

Federal Register page with references to Executive Orders over the years.

 

[nandb]

I disagree with anyone who suggests that EOs are constitutional in anyway. I see no mention of them anywhere in the constitution and therefore see them as unconstitutional under any circumstances. I'd welcome anyone to point me to anywhere in the constitution that allows for EOs.

 

[mugsy]

I disagree with anyone who suggests that EOs are constitutional in anyway. I see no mention of them anywhere in the constitution and therefore see them as unconstitutional under any circumstances. I'd welcome anyone to point me to anywhere in the constitution that allows for EOs.

Nor are e-mails mentioned - does mean the Executive can't use them as ways to direct his staff? You are confusing a means (the EO) of executing already established/authorized duties with the original authority grant.

The EO does not establish authority nor can it authorize anything not already supported under the law. EOs should be merely a way for the Executive to direct his branch's operations. Something clearly and Constitutionally under his purview.

As I stated earlier, IF the Executive tries to do anything not already authorized by law or within his legitimate discretionary power then he is subject to court challenge or political blow-back from the Legislative branch.

I think folks here are confusing the general case of Executive Orders with some very specific Presidential "Signing Statements". Signing Statements have been used as a form of Presidential formal reservation stated as he signs a law - those are, IMO, clearly without force of law as the Constitution makes no mention of the President having any opportunity beyond the Veto to amend or affect laws. He can't simply decide he won't follow a part of the law if he doesn't like it. Though, he can try to make a Constitutional argument that to follow some part of a law would force him to violate a part of the Constitution - then it probably winds up in the Supreme Court at some point.