Thursday, January 26, 2017

It's Not the End of the World

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.

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