Congressional Law: Declaratory Decree Or Not?

In the United States, a bill is a proposal for a new law or a change to an existing law. Once a bill is introduced, it is assigned to a committee whose members will research, discuss, and make changes to the bill. The bill is then put before that chamber to be voted on. If the bill passes one body of Congress, it goes to the other body to go through a similar process of research, discussion, changes, and voting. Congress can also pass legislation that might make it difficult or impossible to carry out an executive order. However, executive orders are not considered legislation and do not require approval from Congress. In contrast, a declaratory judgment is a binding adjudication that establishes the rights and other legal relations of the parties without providing for or ordering enforcement. Therefore, a law passed by Congress can be a declaratory decree, as it establishes the rights and legal relations of the parties involved.

The US Constitution and executive orders

The US Constitution does not explicitly mention or permit the use of executive orders. However, Article II, Section 1, Clause 1 of the Constitution, also known as the Executive Power, is generally interpreted as granting the President of the United States the authority to issue executive orders. This section states: "The executive Power shall be vested in a President of the United States of America." Sections 2 and 3 of the same article outline the various powers and duties of the president, including the duty to "take Care that the Laws be faithfully executed".

Executive orders are directives issued by the President that have similar powers to federal laws. They are used to manage the operations of the federal government, including directing budget cuts from state governments and managing resources and staff within the executive branch. While the President has broad discretion in issuing executive orders, they must be rooted in the Constitution or enacted by Congress through statutes. The Supreme Court has affirmed that executive orders must be supported by the Constitution or specific powers delegated to the executive branch by Congress.

The use of executive orders has been a source of debate, with critics arguing that they can be used to make laws without congressional approval or shift the focus of existing laws. Congress has the power to overturn an executive order by passing legislation that contradicts it or by refusing to provide the necessary funding for its implementation.

The process of passing laws in Congress involves proposing a bill, which can come from a sitting member of Congress or be petitioned by citizen groups. The bill is then assigned to a committee, discussed, and voted on by both bodies of Congress. If the bill passes both houses, any differences between the two versions are reconciled, and a final vote is held. If the bill passes this final vote, it is presented to the President.

In conclusion, while the US Constitution does not explicitly mention executive orders, they have been used by every President since George Washington as a tool to manage the operations of the federal government. Executive orders are similar to federal laws in their effects, but Congress retains the power to overturn or block them through legislative action or by withholding funding. The process of passing laws in Congress involves a series of steps, including proposal, committee review, voting, and presentation to the President.

The President's role in legislation

The US Constitution outlines the President's legislative role in Article II, Section 3. The President's legislative role has grown substantially since 1900, influenced by political and social forces, including the rise of political parties and the recognition of the President as the party leader.

The President has the power to recommend measures to Congress, which is considered a soft duty that cedes discretion. This recommendation power has been used to call the chambers to consider nominations, war, and emergencies. The President can also convene both Houses on "extraordinary occasions" and, in cases of disagreement, may adjourn them to a time of their choosing. Additionally, the President receives all foreign ambassadors, which grants them the authority to recognise foreign nations and their governments.

The Faithful Execution Clause, also known as the Take Care Clause, is a significant source of presidential power. It grants the President broad enforcement authority to ensure the faithful execution of laws passed by Congress. However, it also serves as a limitation on that power, emphasising the President's duty to execute the laws without disregarding or altering them.

The President cannot make laws directly; that power rests with Congress. However, they can influence legislation through their power of recommendation and their role as the de facto head of their party. Presidents are often the primary drivers of legislative agendas, especially in the initial months of their first term.

Executive orders are another means by which Presidents can indirectly influence legislation. These orders are directives issued by the President to manage the operations of the federal government. While the US Constitution does not explicitly permit their use, they are generally rooted in Article II or enacted by Congress in statutes. Executive orders are subject to judicial review and can be overturned if found to lack support by statute or the Constitution.

Congress's power to overturn executive orders

Congress has the power to overturn an executive order by passing legislation that invalidates it. They can also refuse to provide funding for certain policy measures contained within the order or legitimise policy mechanisms. Congress can also grant additional powers to the president by statute, including the use of executive orders to achieve goals.

The US Constitution does not explicitly permit the use of executive orders, but it does give the president broad executive and enforcement authority to use their discretion to determine how to enforce the law or manage the resources and staff of the federal government's executive branch. The president's power to issue executive orders is derived from the Constitution and the powers granted to the president by Congress.

Executive orders are subject to judicial review and may be overturned if they lack support by statute or the Constitution. An executive order cannot override federal laws and statutes and cannot write a new statute. However, an order can tell federal agencies how to implement a statute. For example, Congress can declare a certain drug legal or illegal, but with an executive order, the president can tell the Department of Justice whether prosecuting certain drug cases is a priority or not.

Congress can also pass a new law to override an executive order, but only for those orders enacted "pursuant to powers delegated to the President" by Congress. Congress cannot directly modify or revoke an executive order that was issued pursuant to powers granted exclusively to the president by the Constitution. However, Congress has used several other methods to restrain executive orders, such as attempting to withhold spending on programs created by an executive order.

The President's duty to execute laws

Article II, Section 3 of the US Constitution outlines the President's duty to execute laws, also known as the Take Care Clause. This clause grants the President the power to ensure that the laws are "faithfully executed", upholding existing laws and the Constitution. While the President is not solely responsible for the direct execution of laws, they must ensure their subordinates execute laws faithfully.

The Take Care Clause is a significant source of presidential power, as it seemingly invests the President with broad enforcement authority. However, it also serves as a limitation on that power, emphasising the duty to execute laws faithfully and not disregard them. The President has the authority to determine how to enforce the law and manage the resources and staff of the federal government's executive branch. They can issue executive orders, which are directives that manage the operations of the federal government and must be supported by the Constitution or enacted by Congress in statutes.

The Supreme Court has also sanctioned the creation of independent agencies that execute federal laws, such as those related to communications, banking, and securities. These agencies are protected from executive influence, and Congress has imposed restrictions on the removal of their top officers. This has led to concerns about the erosion of the President's executive power.

Additionally, the President's leadership in legislation has evolved, with Presidents now often acting as the primary driver of legislative agendas, particularly at the beginning of their terms. They have the power to recommend measures to Congress, which grants them a degree of discretion in shaping policy.

The nature of declaratory judgments

A declaratory judgment is a legal determination by a court that resolves legal uncertainty for the litigants. It is a legally binding preventive measure by which a party involved in an actual or possible legal matter can ask a court to rule on and affirm the rights, duties, or obligations of one or more parties in a civil dispute. Declaratory judgments are typically requested when a party is threatened with a lawsuit but the lawsuit has not yet been filed, or when a party believes their rights under law or contract might conflict.

Declaratory judgments are authorized by statute in most common-law jurisdictions. In the United States, the federal government and most states enacted statutes in the 1920s and 1930s authorizing their courts to issue declaratory judgments. The Federal Declaratory Judgment Act states: "In a case of actual controversy within its jurisdiction". This means that a federal court may only issue a declaratory judgment when there is an actual controversy. Without an actual controversy, the federal courts do not have jurisdiction to hear the case.

The declaratory judgment differs from other judgments in that it does not provide for any enforcement or order a party to take any action or pay damages. It simply states the court's opinion regarding the exact nature of the legal matter and whether the parties would be entitled to relief without requiring them to do anything. Declaratory judgments are common in patent litigation and other areas of intellectual property litigation, as they allow an alleged infringer to resolve the situation and eliminate the uncertainty of a potential lawsuit.

In conclusion, declaratory judgments provide a way for parties to seek legal certainty and resolve disagreements by establishing their rights, duties, or obligations under the law or a contract. They are particularly useful in situations where there is a potential for a lawsuit, but no actual lawsuit has been filed yet, and they can help to settle controversies and fully administer justice.

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