Presidential Power: Can A State Law Be Overridden?

The US Constitution does not explicitly permit the use of executive orders, but every President since George Washington has issued them. Executive orders are subject to judicial review and may be overturned if they lack support by statute or the Constitution. While the President can revoke, modify, or make exceptions to any executive order, they cannot override state law. For example, in 2014, the US House of Representatives approved a resolution to sue President Obama for allegedly exceeding his executive authority in changing a key provision of the Affordable Care Act.

Presidential executive orders

Executive orders are often used to address internal government affairs, enforce legislation, respond to emergencies, conduct wars, and fine-tune policy implementation. They can be issued by the President independently or based on proposals from federal agencies. These orders remain in force until revoked, adjudicated unlawful, or expired. Notably, a President can revoke or modify any executive order, including those issued by previous administrations.

The discretionary power to issue executive orders must be supported by congressional law or the Constitution itself, either explicitly or implicitly. While executive orders carry significant weight, they are not above judicial review. They can be challenged in court, and if found to lack constitutional or statutory support, they may be overturned. This check and balance ensure that executive orders do not exceed the President's authority.

Executive orders have been used throughout US history, with each President since George Washington issuing them. The number of orders has varied, with Franklin D. Roosevelt issuing the most at 3,522 during his time in office. Some notable examples of executive orders include the creation of the Export-Import Bank of the United States, the establishment of the National Recovery Review Board, and the formation of the National Labor Relations Board.

The US Constitution and executive orders

The US Constitution does not contain a specific provision for executive orders. However, Article II, Section 1 of the Constitution, which states that "The Executive Power shall be vested in a President of the United States of America", is generally interpreted as granting the President the authority to issue executive orders.

Article II, Sections 3 and 4 of the Constitution provide potential limitations on executive action, including executive orders. These sections stipulate that the President must "take Care that the Laws be faithfully executed" and outline the process for impeachment and removal from office in cases where the President is convicted of "Treason, Bribery, or other high Crimes and Misdemeanors".

Executive orders are directives issued by the President that often carry the same weight as federal laws. They have been used by every President since George Washington to make significant decisions and implement policies. For example, President Abraham Lincoln suspended the writ of habeas corpus during the Civil War using executive orders, and President Trump signed an executive order to weaken the Affordable Care Act (Obamacare).

While executive orders can have significant impacts, they are not without checks and balances. Congress can pass a new law to override an executive order, subject to a presidential veto. Additionally, the Supreme Court can review and overturn executive orders, as demonstrated by the Supreme Court decision that limited President Harry Truman's executive order.

In summary, while the US Constitution does not explicitly mention executive orders, it grants the President the authority to issue them. Executive orders have been used extensively throughout US history and can have far-reaching consequences. However, they are subject to limitations and can be challenged or overridden through various mechanisms.

The President's limitations

The President of the United States has significant discretionary powers to make executive orders, which remain in force until cancelled, revoked, or adjudicated unlawful. However, there are limitations to the president's powers.

Firstly, the president's executive orders must be supported by the Constitution or a clause granting specific power. Sections 2 and 3 of Article II describe the president's powers and duties, including the requirement to "'take care that the Laws be faithfully executed'". The president cannot act outside the bounds of the Constitution and any orders lacking constitutional support may be overturned.

Secondly, while the president can issue executive orders, they cannot override federal laws or the Constitution. For example, executive orders cannot violate the First and Fifth Amendments or federal laws such as the Immigration and Nationality Act. In such cases, a federal court can intervene to issue a temporary restraining order to stop the enforcement of an unlawful executive order.

Thirdly, the president's power to appoint and remove officials is limited. While the president can nominate and appoint ambassadors, ministers, judges, and other officers with the advice and consent of the Senate, they cannot remove officials serving in agencies with quasi-judicial functions without statutory authorization.

Finally, the president's powers are checked by other branches of government. The legislative branch must approve certain policy initiatives, and the judicial branch can review and overturn executive orders that lack support by statute or the Constitution.

In summary, while the president has broad discretionary powers, they are limited by the Constitution, federal laws, the appointment and removal process, and the checks and balances of the other branches of government.

State constitutions and gubernatorial executive orders

State constitutions play a crucial role in defining the powers and responsibilities of governors, who serve as the chief executives of their respective states. While the scope of gubernatorial power varies across states, governors generally have the authority to issue executive orders, propose and veto legislation, and appoint state court judges and agency heads.

Executive orders are a powerful tool used by governors to pursue new policies and address various issues within their states. These orders can be issued based on the governor's authority under the state constitution, statutory law, or case law. In some states, the governor's general responsibility to execute state laws includes the ability to issue executive orders. For example, Governor Pat Quinn of Illinois used a gubernatorial executive order (GEO) to transfer the Diabetes Prevention and Control Program from the state's Department of Human Services to the Department of Public Health, citing the authority granted by the state constitution to "reassign functions among or reorganize executive agencies which are directly responsible to him."

GEOs are significant sources of law in every state and can be used to address a range of issues, including public health, state employment, and facilities. For instance, Governor Kaine of Virginia issued a GEO prohibiting smoking in offices and vehicles of executive branch agencies to protect individuals from secondhand smoke exposure.

It's worth noting that the power of governors to issue executive orders is not explicitly granted in most state constitutions. Instead, it is often implied by sections that vest the "executive power" in the governor, allowing for the issuance of executive orders. Additionally, the authority to issue executive orders can also arise from statutory law or case law in certain states.

Executive orders can be used to trigger emergency powers during natural disasters, public health emergencies, or other situations requiring immediate attention. They can also be subject to legislative review in some states, and their validity may be questioned or overturned through legal processes.

The President's power to remove from office

The President of the United States has the power to issue executive orders, which are directives that outline how laws will be enforced and how policies will be implemented. These executive orders remain in force until they are cancelled, revoked, adjudicated unlawful, or expire. The President can revoke, modify, or make exceptions to any executive order at any time, including those issued by previous administrations.

While the President has the authority to issue and revoke executive orders, their power to remove individuals from office is more limited. The President can remove certain officials, such as ambassadors, ministers, consuls, and judges, with the advice and consent of the Senate. However, the President's power to remove members of agencies with quasi-judicial functions has been disputed. In the Wiener v. United States case, the Court concluded that the President could not independently remove a commissioner whose term was tied to the life of the agency.

The President's removal power has been further clarified in cases such as Myers v. United States, where the Supreme Court upheld the President's authority to remove a postmaster, and Humphrey's Executor v. United States, where the Court applied the concept of "the nature of the office" to limit the President's removal power.

It is important to note that the President's executive orders and removal power are subject to judicial review and must be supported by the Constitution or congressional law. The Supreme Court has the authority to overturn executive orders if they are found to be unconstitutional or lacking statutory support.

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