Executive Orders Are Not Laws

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In the recent flap over Cheney and the Executive Order for the National Archives, there's been talk that Cheney violated the law.

He didn't. At least, not by virtue of not following an Executive Order.

An Executive Order is not a law. The Constitution never gave the President authority to create such laws. There are no criminal or civil penalties for not following an Executive Order (though there could, of course, be penalties for other things: for example, violating an Executive Order could in some cases also be considered actions that constitute fraud, or treason, or some other statute).

All executive authority is vested in the President. The Constitution says so, in the opening words to Article II. Executive Orders, legally speaking, are merely a formal way the executive may use to express to the rest of the Executive branch what it is supposed to do, or not do. This can be done more informally through memos or personal conversations, none of which have any more or less legal standing than Executive Orders do.

And because all executive authority is vested in the President, and Executive Orders only govern executive functions, the President alone is charged with interpreting and enforcing Executive Orders. So if he wants to say "I do not interpret this order to apply to Cheney," it therefore does not. Or if he says, "I told Dick in a private conversation that he didn't have to follow it," that is more than sufficient. He can even say, "I thought it applied to Dick, but after the fact we talked about it, and I changed my mind: he doesn't have to follow it in the future, and this applies retroactively."

That also means that the President cannot be bound by Executive Orders. How does it make sense to say that the President has all executive authority, but that he can be forced to comply with an Executive Order? The Executive Order has no authority except via the President. The Order cannot have greater authority than the President. Again, these are not laws. It's similar to the Senate, which gets to make up its own internal rules, which no one else has any say over. You can't take legal action against the Senate for not following its own written rules. No one else has any authority in this regard. The Senate can choose to follow, or not, its own rules at any time.

All of that is entirely, perfectly, legally, reasonable.

Now, you can say you don't like the substance: you think this particular regulation SHOULD apply to Cheney. That's fine. You can also think Cheney's reason for not following it is nonsense (that because he is also in the legislative branch, he therefore is not solely in the executive branch, and any regulations for people "in the executive branch" do not apply to him; the more I think about it the more I think he has a point, though: what if some of his documents are specifically legislative branch documents? Why should those be governed by executive orders, any more than Harry Reid's legislative documents should be?). (Similarly, you can think the Senate SHOULD follow its own written rules, even though it is not required to.)

But regardless of any of those disagreements, the facts still stand that it is not against the law to violate an Executive Order (except the broad claim that you are undermining the authority of the Executive, which itself is not actually a law, though it is a Constitutional principle), that the President has full authority to say that the Order in question has not been violated or will not be enforced, and that there's no criminal or civil penalty for violating an Executive Order.

I am not even sure what anyone could do even if Bush held that Cheney did violate an Executive Order. Cheney can't be fired: he's an elected officer. Bush could, of course, kick Cheney out of the loop and take away all of his executive responsibilities, except for those mandated by the Constitution, which don't take effect until the President is incapacitated. I suppose the only other thing is that he could be impeached, which would be unlikely to happen on the basis of an Executive Order if the President said the Vice President did nothing wrong, but if the President supported the impeachment, then it very well could happen. slashdot.org

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This page contains a single entry by pudge published on June 24, 2007 10:42 AM.

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