Are there clear rules of when the president can and cannot use executive action?

1

We have heard time and time again people in the United States arguing whether the president has the authority to take executive action on certain matters.

Are there clear, cut and dry rules on when a president can take executive action, or is it all up to the judicial branch's arbitrary discretion?

What is usually the process to find out whether the president has the authority to take executive action on a specific matter?

AxiomaticNexus

Posted 2014-11-13T19:35:40.253

Reputation: 475

Question was closed 2014-11-20T15:36:04.727

1The proper answer is "people argue that the president has the authority when they agree with the executive action in question; and that he does not, when they disagree". See for proof liberal views on the topic under Bush vs Obama (If i try hard enough I can probably find the SAME source - say, NYT - contradicting itself). – user4012 – 2014-11-14T20:28:38.707

1The proper answer is "people argue that the president has the authority when they agree with the executive action in question; and that he does not, when they disagree". See for proof conservative views on the topic under Bush vs Obama (If i try hard enough I can probably find the SAME source - say, Washington Times - contradicting itself). – None – 2014-11-17T16:01:07.713

Answers

3

No, there are no clear rules.

From Wikipedia

There is no constitutional provision nor statute that explicitly permits executive orders. The term "executive power" Article II, Section 1, Clause 1 of the Constitution, refers to the title of President as the executive. He is instructed therein by the declaration "take Care that the Laws be faithfully executed" made in Article II, Section 3, Clause 5, else he faces impeachment. Most executive orders use these Constitutional reasonings as the authorization allowing for their issuance to be justified as part of the President's sworn duties,2] the intent being to help direct officers of the U.S. Executive carry out their delegated duties as well as the normal operations of the federal government: the consequence of failing to comply possibly being the removal from office.

An executive order of the President must find support in the Constitution, either in a clause granting the President specific power, or by a delegation of power by Congress to the President.

That page discusses how the practice has evolved, but basically it boils down to "The President claims that a law requires him to take action". Sometimes the laws are more explicit, sometimes they're a significant stretch, and sometimes they're stretched so far they're challenged in court. But there's no absolute law on the matter.

Bobson

Posted 2014-11-13T19:35:40.253

Reputation: 21 023

Was the whole concept ever tested in SCOTUS? – user4012 – 2014-11-17T15:30:08.180

@DVK - The concept as a whole? I don't think so. But they have heard cases about specific ones, and since they didn't invalidate the overall idea, I don't expect they will.

– Bobson – 2014-11-17T15:46:58.523

1With this information, what law (or part of it) is Barack Obama claiming requires him to take action to act on immigration reform? – AxiomaticNexus – 2014-11-17T18:40:26.487

@YasmaniLlanes Obama isn't claiming any laws require him to take action. He's claiming that he was going to take action if congress didn't resolve this in a bi-partisan manner. He's taking action not because the law says he must, but because he's following up on his political promise/threat. – None – 2014-11-18T01:22:27.520

@YasmaniLlanes - Until he does take action, and we see what form that action takes, there's nothing specific to act about. Simply ordering ICE to stop deporting people is totally within his job description without referencing anything beyond the law which creates ICE as an executive branch agency, for example. – Bobson – 2014-11-18T01:41:44.503

@Bobson - eh? The law clearly says that they must be deported, doesn't it? – user4012 – 2014-11-18T07:03:55.160

@DVK - Honestly, I don't have any idea. It was an example off the top of my head. But it's the kind of thing he can order. – Bobson – 2014-11-18T11:58:29.397

@Bobson According to Wikipedia, "ERO (by ICE) is responsible for enforcing the nation's immigration laws and ensuring the departure of removable aliens from the United States" (http://en.wikipedia.org/wiki/U.S._Immigration_and_Customs_Enforcement). If the president can go against clearly stated immigration laws, then what can the president NOT do? I'm still having a hard time figuring out where the line is drawn.

– AxiomaticNexus – 2014-11-18T18:51:58.723

That wasn't the best example I could have used. Here's a better one: The FDA will not prosecute people for medical marijuana use if it's legal in their state, even though it's still illegal federally. He also stopped enforcing/defending DOMA, which did end up in court.

– Bobson – 2014-11-18T19:35:04.937

2@YasmaniLlanes I believe there is precedent for POTUS to refuse to enforce a law if they believe in good faith that it is unconstitutional. For instance, there is a line of thought that according to the Constitution, Congress can limit citizenship but not the right for people to travel here. This has largely been ignored in the past, but it's one possible route for this action to take. I'm sure there are other avenues to explore, but like the answer says, there is no clear line, and it's been a bit of a struggle between branches since their inception. – Geobits – 2014-11-18T19:35:05.157

@YasmaniLlanes - Now that Obama has given his announcement, you should ask a new question if you have any specific questions about it. – Bobson – 2014-11-21T01:55:34.233