Executive Orders and the Constitution

By: May 05, 2011

Those of us who have reached a certain age can remember when presidential exercise of the “Executive Order” was a rare occurrence. Such is no longer the case. Indeed, it seems that an increasing number of governmental decisions are made by Executive order instead of through legislation.

This can’t be a good thing.

Indeed, when I hear of another Executive order I often think that Alexander Hamilton finally got his way. Our president is now exercising the kind of  monarch like authority Hamilton preferred.

How did this happen? Hamilton’s long winded speech at the Constitutional Convention advocating such executive authority was greeted with deadening silence. Yet, more than two centuries later it is Madison, not Hamilton, whose spirit is troubled by the conduct of our executive.

In 1999, attorneys William J. Olson and Alan Woll wrote an excellent article for the Cato Institute on this very subject. Executive Orders and National Emergencies: How Presidents Have Come to “Run the Country” by Usurping Legislative Powers lays out a detailed historical analysis that explains when Executive orders have been properly and constitutionally issued, and when not. It will come as no surprise that the authors concluded that in recent decades, presidents have abused the power of the Executive order.

The Cato article is a bit scholarly, and now outdated. However, this topic–Executive Orders and the Constitution–would make an excellent contribution to the Voices of the Tea Party e-book series.

Michael Patrick Leahy is the editor of the Voices of the Tea Party e-book series, co-founder of Top Conservatives on Twitter and the Nationwide Tea Party Coalition, and the author of an upcoming book on the ideological origins of the Tea Party movement. He can be reached on Twitter at @michaelpleahy .



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