Many on the Right, as well as elsewhere along the political spectrum, have deplored President Obama's use of executive orders to impose his agenda. But Mr. Obama is not the first President of the United States to use executive orders, in fact the practice began with George Washington and has continued through every president since. Barack Obama does not even hold the record for the most executive orders, a distinction that is owned by Franklin Roosevelt with his 3522 executive orders. FDR makes BHO look like a piker, the latter having only 161 executive orders through July 2013. The first president to break 100 executive orders was Ulysses S. Grant at 217, the first to break 1000 was Theodore Roosevelt at 1081.
The very first executive order was issued by George Washington in 1793. It was an order instructing federal officers to prosecute any citizen who interfered in the war between England and France. Congress and the courts have usually given presidents a wide berth on executive orders, but in 1952 during the Korean war one written by President Truman was challenged before the Supreme Court. A steel strike threatened that very precious commodity during wartime and President Truman issued an executive order to seize control of the nation's steel plants. The Supreme court determined that since the strike fell under the 60 day cooling off period required by Taft/Hartley, the Truman executive order was unconstitutional.
In the Youngstown decision, which was the first time in our history an executive order was dismissed by the Supreme Court, the 6 justices in the majority stated that the power to issue executive orders must come from an act of congress or the Constitution itself. Justice Robert H. Jackson, who wrote the majority opinion, delineated the three levels of executive orders as follows:
A president has the most authority when he has the expressed or implied consent of congress.
A president has uncertain authority when congress has not imposed its authority by action or
A president has the least authority when the executive order is incompatible with the expressed
or implied will of congress.
Since the Truman order fell into the third category due to its violation of the Taft/Hartley Act, it was ruled unconstitutional.
Article II of the constitution gives the president the authority to issue executive orders, even though it does not use that term. In fact, the term Executive Order did not make its way into the vernacular until the 1860s. Article II, section 3 of the constitution states, "he shall take care that the laws be faithfully executed..." It is this seemingly innocuous statement that has spawned such political debate throughout our history, and continues to do so to this day.
If President Obama issues an executive order that, as Justice Jackson outlined in the Youngstown case, is incompatible with the will of congress, then he will be in violation of the constitution. For instance, if Mr. Obama were to issue blanket amnesty to illegal aliens it would violate the immigration laws passed by previous legislation, therefore fulfilling Justice Jackson's requirement for being an unconstitutional executive order.
So far, President Obama has very cleverly walked a thin line on his executive orders, being careful to not let any of them fall into Jackson's third category. Of course the constitutionality of any executive order is predicated upon the issuing president being challenged by congress, or brought before the Supreme Court by a civilian source and the Court agreeing to hear the case. This may be a tall order to fill against the first black president, and Mr. Obama may take advantage of this fact to venture into uncharted waters with his executive order privileges. Only time will tell.