Presidential Authority

Democrat Sheldon Whitehouse is whining about the President's view of his authority.

But every statement of authority he is complaining about is absolutely true.

1. An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

This is absolutely true. Executive orders, explicitly or otherwise, are not in the Constitution. As far as the Constitution is concerned, an "executive order" is just one of many ways a President can give orders to the rest of the executive branch, and is in no way binding on the President himself. An "executive order" has no more constitutional standing than a verbal order. Heck, or a nonverbal order. A wink, a nod, a finger pointing.

None of them is elevated above any other, and none of them is binding on the President, because executive authority is vested in the President, and the President alone (so sayeth Article II of the Constitution). His orders have any power only because they come from him, and any order, in any form, he gives later has more power than any executive order before it because it comes from the same authority, but is more recent.

This is not only how it works, this is how it must work. To have it work any other way is to say that there is an executive authority above the President.

2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President's authority under Article II.

Yep. Absolutely true. What are the alternatives? There's only three: give Congress the new authority to dictate constitutional interpretation to the President, violating separation of powers; give the Court new authority to interpret law without an actionable case in front of them; or give someone in the executive branch power to dictate interpretion of the law to the President, violating the first sentence of Article II of the Constitution.

If you don't like what the President does, you can question him, and use politics to combat him. If it gets bad enough, you can take him to the Supreme Court (which has been done, with Bush usually, but not always, winning), or you can impeach him.

This is not only how it works, this is how it must work. To have it work any other way is to say that there is an executive authority above the President.

3. The Department of Justice is bound by the President's legal determinations.

This was dispensed with above. All executive power is vested in the President, including all of the Department of Justice.

This is not only how it works, this is how it must work. To have it work any other way is to say that there is an executive authority above the President.

The problem here appears to be simply that Democrats don't like executive authority being vested in the President ... at least, not when the President isn't their guy.

You may disagree with the choices the President has made. You may think some of his views, and acts, are unconstitutional. But it is entirely clear that he is not legally bound by any executive order or legal interpretation (other than Supreme Court decisions).