It's been a while, so sorry for the absence.
First things first - the new president has issued a slew of executive
orders this week. The irony is that the same party who excoriated the
previous president for his use of executive orders (done so in the wake
of historic obstructionism by his opposing party congressional members)
to facilitate the actual governance of the country has done very little
besides applaud the actions of the new CINC. To be fair, I have heard
at least one Senator state that bringing back torture is not going to
happen, but that's about all I've heard/seen so far.
Here's the thing about executive orders. They don't mean much.
Generally speaking, the hierarchy goes something like this: The
Constitution is what controls. The end. If it's in the Constitution,
that is what counts. Then, the Amendments to the Constitution, which
actually supersede what's written in the Constitution itself, and by act
of ratification become a part of the Constitution. After that we have
statutes and treaties. Statutes and treaties generally apply on an even
level of authority with the "last in time" rule - the last statute
executed or treaty ratified on an issue is the controlling statute or
treaty (see Constitution Art. VI).
You'll notice that at no point yet have I mentioned executive orders.
That's because executive orders have no general effect of law. Congress
passes laws. The Senate advises and consents on treaties. In other
words, in order for those to be effective, they must touch both the
executive and legislative branches.
Executive orders are a different animal. They are signed by the
executive and control the areas that fall under his purview. There are
two areas that I want to touch on regarding the president's authority
with respect to executive orders.
The first is the implementation of the laws when necessary. The prime
example of this would be immigration and deportation. Congress passes a
budget each year allocating funding for immigration control. Congress
dictates how much gets spent on immigration control, but it's up the the executive branch to determine where
to focus. So, if there are (for example) 500,000 individuals awaiting
deportation hearings, but there is only enough funding allocation to
handle 250,000 cases, Congress does not get to decide which individuals
get deported. That's up to the executive branch (i. e. the president).
The president can choose, for example, to direct ICE to focus on
deporting violent offenders over someone who is working a full time job
who happened to be brought here by his or her parents 20 years ago and
had no control over his or her situation. Coincidentally, that was what
the Republican party was ignoring while criticizing Obama as being
"soft" on immigration during his administration.
The second area where the executive orders apply are areas where the
laws of the land haven't touched. In Constitutional Law, we had this
described to us as the place where congress has not "occupied the
field." In other words, Congress could act and give direction, but for
whatever reason, Congress hasn't (the clearest example would have been
the War Powers act, where Congress attempted to rein in the President's
warmaking authority).
To my knowledge, none of the executive orders that the new president has
issued have actually touched on anything that hasn't already been
addressed either by the Constitution, statutes or treaties (e.g. NAFTA,
Geneva Conventions, etc.). Any edicts that he throws out via executive
order is worth exactly as much as the paper on which it is written and
the ink with which it was signed.
I believe the new president is unclear on what his actual job entails,
and I think that bodes ill for the next four years, but that's why we
have blogs - so we can complain about it and keep a journal of just
what's going on.
