In recent years, there has been a resurgence of interest in how executive orders have been used and whether there has been a violation of presidential executive orders. An executive order is a guideline from the president with the same authority as a federal statute. The president often issues executive orders, most of which are addressed to government departments and officials. Over the years, presidents have used executive orders to articulate with different government internal relations, as well as to deal with crises, determine when and how specific laws can be enacted, and come up with measures that suit their agendas. However, there have been reported cases of abuse of the executive orders by the presidents, and some are accused of taking advantage of this power to force some policies that do not fully interest the public. But are the executive orders constitutional? And do they create an unequal separation of power?
Any executive order has the full force of law if only it’s based on the authority consequent of the constitution or from the statute. In the constitution of the United States, no provision openly permits the practice of executive orders. Where the executive order is mentioned in the constitution, there is no clear explanation of what it should pertain. For any acting president, the executive order they develop must go in line with the constitution fails to which the president can face removal from office (Rudalevige 158). The question of whether or to what extent should the executive orders be used to become unconstitutional always narrows to one’s opinion. Many feel that the executive orders that are currently being made by the sitting presidents are interfering with the freedoms and rights of the citizens.
Many argue that there should be a big difference between giving an executive order that is a directive and making law. The president has no authority to make legislation all in the name of an executive order. On their defense, the presidents say that some directives they make are because the Congress is too slow to work. For example, the gun ban that was to be effected some years back was an act against the constitution because such an issue should not be made and concluded by the executive only. On the other hand, however, an executive order that fully follows the dictate of the constitution is completely constitutional. When the president gives out the executive order that many congress members don’t agree with, they can, in turn, make another law that they feel can counter the executive order (Mason, Alpheus, & Grier 302). Also, the judicial procedures are well put in place to challenge an executive order that is not in line with the constitution.
The three branches of government the judiciary, Congress and the executive are structured to have equal powers though it’s tough to distribute power among them equally. Each branch is supposed to check if the other branch is abusing power in any way to ensure that there is credibility in what is done by that branch. The executive orders have been accused of creating an unequal separation of powers because the executive powers seem to be additional power given to the executive making it more powerful than others (Fine, Jeffrey & Adam 260). Furthermore, even with the stipulated guidelines on how to revoke executive orders, it’s usually not as easy as it may sound and the majority of the directives typically pass. However, executive orders do not exactly create an unequal separation of power because the directive made by the president are not exactly laws since the congress is the branch that can make laws.
Fine, Jeffrey A., and Adam L. Warber. “Circumventing adversity: Executive orders and divided government.” Presidential Studies Quarterly 42.2 (2012): 256-274.
Mason, Alpheus Thomas, and Grier Stephenson. American constitutional law: introductory essays and selected cases. Routledge, 2015.
Rudalevige, Andrew. “The contemporary presidency: Executive orders and presidential unilateralism.” Presidential Studies Quarterly 42.1 (2012): 138-160.