Last week Republicans in Congress deleted a Democratic amendment designed to make AIDS drugs cheaper in Africa from the Africa Free Trade Bill. A few days later, President Clinton issued an executive order that is almost identical to the deleted amendment. His critics say the president is using the executive order to circumvent Congress and advance his legislative agenda. What is a president allowed to do by executive order?
There is no constitutional or statutory language explaining what an executive order is, but presidents have been issuing them since 1789. They are enforceable as law unless they are overturned by Congress or the courts.
Because the Constitution’s definition of presidential authority is vague, the rules about what can be included in an executive order are unclear. A 1950s Supreme Court decision overturning a Harry Truman executive order offers the sharpest guide to what constitutes a legitimate executive order. The court invalidated the Truman order on the grounds that it attempted to make law. The court further ruled that an executive order is valid only when the president is acting pursuant to an act of Congress or to the Constitution itself. As a result, presidential orders frequently identify the statutes they are relying on: Clinton’s AIDS drug order cites three laws.
The Supreme Court has been reluctant to hear challenges to executive orders: It has rejected only two, Truman’s and a 1996 Clinton order barring the federal government from contracting with companies that hire permanent strikebreakers. (Correction, 5/18: Slate reader Kenneth R. Mayer correctly points out that it was not the Supreme Court but the D.C. Court of Appeals that overturned Clinton’s order.) The court’s unwillingness to intervene has freed presidents to issue orders on a wide range of subjects. President Clinton, for example, has used orders as controversial as designating Yugoslavia a combat zone and as insignificant as establishing a new military medal.
Congress retains the power to revoke or de-fund an executive order but has rarely exercised that authority.
