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Robert Winner

TEDCRED 100+

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Better define and restrict Executive Orders

Some legal experts, such as Stanford University professor Michael McConnell, say that the president is not allowed to pick and choose what laws to enforce. Politicians have a right to make their case, but not to make an end run around the law.

The House and Senate did not pass cap-and-trade bills, which would limit greenhouse gas emissions. So the Environmental Protection Agency is doing cap-and-trade on its own. The Congress did not pass the DREAM Act, which would have allowed undocumented young people to remain in America. The Department of Homeland Security has allowed them to stay.

The question is: If the Constitution and or Congress either state a law or denies a proposal does the Executive Order procedure override the Constitution or Congress.

All presidents use Executive Orders so this is not limited to any party or a specific administration.

Do we need to better define and restrict Executive Orders.

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  • Aug 23 2013: yes.
  • Aug 8 2013: Wayne,
    Why would you want or allow things to be put in front of (in the hands of), an extremely powerful court made up
    of people you never got to vote for?
    Why would you want or allow people who are owned by those who do anything they wish,
    without your consent, knowledge, to make any kind of policy at all?
    Why would you leave such decisions to liars, oh, excuse me, I think the correct spelling is lawyers, but I
    believe I got the correct, phonetic pronunciation, who are also owned, have conflicting interests and are known
    to be extremely dishonest, work above the law and even below the law and
    just why should something like this post be suggested?
    Weren't things clearly set out by the Founding Fathers?
  • Jul 28 2013: I think this is an area of discussion for legal experts.

    The strict constitutionalists believe the President must enforce all laws passed by Congress. While others are arguing that the President can not use the "I was obeying orders" defense and must not enforce laws that he/she feels are unconstitutional.

    The interesting thing is the requirement to not to obey unlawful orders goes back to 1804 (The Flying Fish case) by the Supreme Court and through the Iraq War.

    My personal opinion is that it needs to be put in front of the Supreme Court to decide possibly in each case.
  • Jul 28 2013: The issue you are addressing is not actually about 'executive orders' as such, but rather about the extent and limits of the power of the president. The framers established three _independent_ branches of government, at least in theory. That approach to government has advantages and disadvantages, and you seem to be saying that the president's power to decide how to execute the laws is a big disadvantage.

    The only way to restrict the powers of the president is through a constitutional amendment. It would be a major challenge to write such an amendment that would still provide the president with any real power to make any decisions regarding the execution of the laws.. The framers did not want the president to be a lackey to congress, and I do not think that approach would result in any better governance.

    So it boils down to, what specific restrictions would you propose, and how would they be enforced? One of the big problems with our constitution is that there is only one response to a wayward president, and that is impeachment, which is essentially a political process.
  • Jul 28 2013: Any executive order that someone think that it is unconstutional cane be challenged in the court (Federal Courts, usually The Supreme Court). I believe it can be done in the ACA case.
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    Jul 28 2013: Aside from Executive Orders, don't many presidents not enforce all the laws on the books because, as a practical matter, there are not adequate resources to do everything?

    I remember in the Reagan administration, there were specific antitrust laws that were not enforced, because those laws were believed to be contrary to the public interest. An example was the prohibition against retail price maintenance, the practice by manufacturers of preventing their distributors from charging a price less than a price dictated by the manufacturer.
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      Jul 28 2013: You are correct. As I stated it is not one party. I am just old fashioned enough to think that these things should go through Congress. When Congress voted and said that Cap and Trade was not a good idea and voted it down then through a loop hole the guy in charge says I don't care what Congress says I want it so do it.

      As a Independent I have the same problem with any party that by passes Congress.

      My point here was that allowing it to continue just means the next guy will take it one more step. I am suggesting that the practice should have some limits. When it impacts the Executive Branch I am good with that. When it become federal law impacting the nation ... it should go through Congress.

      As always I appreciate your reply. I wish you well. Bob.
  • Jul 27 2013: Isn't this what you are criticising?
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      Jul 27 2013: George, Was there more to your reply. Bob.
      • Jul 28 2013: Not really I just meant that there is always disagreement especially in politics. Which administration are you talking about? Oh yes, those crazy "other guys."
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          Jul 28 2013: All of them. Executive Orders should be restrict to the management of the Executive Branch. When a Executive Order, by anyone, becomes federal law impacting all citizens ... then I think that is the job of Congress .... to pass laws.

          Thanks for the clarification. I wish you well. Bob.
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          Jul 28 2013: From another TED post regarding EO's: "Most recent POTUS' use EO's 40-50 times a year. Carter issued almost 80 per year. FDR is the champ @ 285+ per year for each of his 12 years in office (3,466 total)! George W. and Barak Hussein are the most miserly ever with 36 per year (so far). Going back to FDR Democrats have used 76% (5,720) of the total EO's (7,529)."
      • Jul 29 2013: So if I get it right Bob Edward says President Obama DOESN'T DO MANY eo's
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          Jul 29 2013: George, I have said many times already ... it is not about Obama ... Executive Orders should be restricted to the management of the Executive Branch. When a Executive Order, by anyone, becomes federal law impacting all citizens ... then I think that is the job of Congress .... to pass laws.

          Bob.
      • Jul 30 2013: Bob it's hard to get so I am sorry Most people have nuances and agendas Now I know.