Very recently, three old fart but intelligent friends of mine were sitting around in our residents’ clubhouse discussing various issues. Contention arose when the topic of laws arouse, specifically pertaining to presidential executive orders. One adamantly contends that they are not laws…of course, I contend otherwise. In doing research on this, I have to admit that there is a lot of disagreement about this, even among those who have studied and/or practice law in one form or another. Consequently, I decided to briefly break it down into two sections: Law definition, and law as it pertains to executive orders. Based upon this, and based upon your own research and opinion, you can reach your own conclusion. I stand pat with my decision that EO’s, and the rules and regulations that result from them, are laws.

LAW DEFINITION

Anytime a government entity directs individuals or other entities to act, behave, or perform in a desired way, and it is done so to compel the governed to perform as such under the threat of penalty or punishment for disobeying the directive, it is a law.

The dictionary (Webster’s New Universal), in the first of fifteen definitions to include sports and mathematics, defines law as “the rules of conduct established and enforced by the authority, legislation, or custom of a given community or other group”. Additionally, synonyms which are used in place of the word law are (among many): act, canon, code, command, order, ordinance, regulation, rule, and statute.

Law is a system of rules that are enforced through different institutions to govern behavior. Laws can be made by a collective legislature or by a single legislator, resulting statutes, by the executive through decrees and regulations, or by judges through binding precedent, normally in common law jurisdictions. The formation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people.

LAW AS IT PERTAINS TO EXECUTIVE ORDERS

The Constitution does not explicitly allow for executive orders, however does refer to it in terms of “executive power” in Article II whereby the president is instructed to “take Care that the Laws be faithfully executed” or “face impeachment”. Presidents use this reasoning to be their authorization of executive orders to be part of their sworn duties, thereby enabling them to carry out their regular duties by delegating federal power to agencies or to individuals (czars).

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. The president may not override or supersede congressional powers when enacting an EO. Recent Supreme Court decisions overturned individual EO’s pertaining to illegal immigration because they were not in compliance to this guideline. The Supreme Court did not overturn the use of EO’s as a whole – if they did, all federal government agencies such as the EPA, FAA, USDA, DEPT. OF EDUCATION, etal would be immobilized, and would be at a standstill since each and every one operates under the rules handed down to them by their directors who, in turn, received an executive order from the president instructing them to create the guidelines, rules, and/or regulations.

An executive order is legal and enforceable unless and until a court of competent jurisdiction rules it to be unconstitutional, or if congress passes a law invalidating it.

In an overall summary, there are many forms of law to include natural law and others. The basic federal laws we are all familiar with is Constitutional Law, laws whose origins are from the Constitution, under which congress is expressly designated to write them. The rules, regulations, edicts, etc., handed down by different federal agencies or appointed czars are only tacitly approved by congress by allowing for the usage of executive orders. As with the president, congress does not want to be encumbered with the details of many decisions and thereby regulators in the various agencies and departments of government inherit the power to make everyone’s life miserable.

As a final thought, “Congress shall have the sole power of writing laws” and “Congress shall not abrogate its responsibilities and delegate this power to others”. I guess this does not count for much. Through many of their other decisions, the Supreme Court feels the same.

Alexander Wisniewski