Case Study: Executive Orders
Case Study: Executive Orders
Executive orders are presidential proclamations that carry the force of law. They are a constitutional means for the president to set policy. Most executive orders are relatively innocuous, such as setting aside public lands for a national park, while others are more controversial.
Presidents since George Washington issued executive orders, but the number increased dramatically with modern presidents. President Washington issued 8 executive orders over two terms, and Thomas Jefferson issued only 4. On the other hand, President Franklin Roosevelt issued 3,721, and Ronald Reagan issued 381. More troubling than the rising number of executive orders is that presidents used executive orders to make very important and controversial decisions rather than working through Congress, where the representatives of the people deliberate and try to forge a consensus. This can create a situation where a president makes unilateral decisions of significance, affecting the separation of powers and self-government by the consent of the people. For example, Roosevelt implemented Executive Order #9066, which was used by the military to forcibly relocate Japanese-Americans into internment camps. Harry Truman seized the nation’s steel mills with Executive Order #10340 in the name of national security after steel workers went on strike across the country. Congress can use its powers to block or impede executive orders, and the courts can decide that executive orders are unconstitutional.
Caption: President George W. Bush
President George W. Bush and Enhanced Interrogation Techniques
After the terrorist attacks on September 11, 2001, the George W. Bush administration established military commissions to try suspected non-citizen terrorists outside of the normal court system. The Bush administration also allowed the Central Intelligence Agency to engage in what it called “enhanced interrogation techniques” on suspected terrorists that critics called torture. President Bush and his officials argued the actions were both constitutional and justified because of national security concerns. They claimed these actions were necessary to prevent future attacks.
The other branches of the federal government offered their own constitutional interpretations of the administration’s actions. In Hamdan v. Rumsfeld (2006), the Supreme Court held that Congress had not authorized the Bush administration to establish the military commissions and were therefore unlawful. It additionally held that Common Article 3 of the Geneva Convention, which prevents torture of enemies during war, applied to the conduct of the United States in fighting the War on Terror against al-Qaeda. In September 2006, Congress passed the Military Commissions Act, which stated that violations of Common Article 3 were subject to prosecution under the law.
On July 20, 2007, President Bush issued Executive Order #13440, which continued the enhanced interrogation program despite the ruling of the Court and Congress but provided additional safeguards for prisoners. However, President Barack Obama, elected in 2008, issued Executive Order #13491. President Obama’s order rescinded his predecessor’s executive order and banned enhanced interrogation techniques.
Caption: President Barack Obama
President Barack Obama and Guantanamo Bay
On January 22, 2009, President Barack Obama signed Executive Order #13492, which mandated that the detention facility at Guantanamo Bay holding suspected terrorists be closed within a year. By signing the order on his second day in office, President Obama signaled his strong opposition to the way his predecessor, President George W. Bush, conducted the War on Terror.
The order stated that, with the closure of the facility, detainees would have their cases reviewed and be released, sent to their home countries, transferred to another nation, or moved to a U.S. prison. The plan encountered immediate opposition, most notably from members of Congress who moved to counter the executive order.
In 2010, Congress passed a law banning the transfer of detainees to U.S. prisons because of fears that doing so would endanger American lives. More broadly, the legislation also compelled the president to inform Congress when the administration released a detainee to another country. The president broke that law in 2014 when he authorized the release of 5 prisoners to Qatar without notifying Congress. By the time he left office in 2017, Guantanamo Bay remained open.
Caption: President Donald Trump
President Donald Trump and the Travel Ban
On March 6, 2017, President Donald Trump signed Executive Order #13679, which imposed a travel ban on immigrants from several Muslim-majority nations: Iran, Iraq, Libya, Somalia, Sudan, and Syria. President Trump issued the executive order to address his national security concerns.
A couple of states sued in federal court, seeking a temporary restraining order blocking the executive order. One of the arguments the administration made defending its action was that the order used an executive power that was “unreviewable” by the courts. In other words, the administration claimed unilateral executive power beyond the principle of checks and balances.
The federal district court ruled against the Trump Administration and granted the restraining order. When the administration appealed, the Ninth Circuit Court of Appeals affirmed the decision of the lower district court. The Court of Appeals stated that the argument against judicial review of the order was “contrary to the fundamental structure of our constitutional democracy.”
The Trump Administration revoked the executive order and issued a new one (#13780) to address the court’s concern with a modified travel ban. The order was again challenged in the courts. Eventually, the Supreme Court approved a stay for the injunction and allowed the travel ban in Trump v. Hawaii (2018).