It may surprise people to know that the delegates to the Constitutional Convention of 1787 gave very little attention to the executive branch of government.
They argued at great length over what power the Congress should have, but when it came to the president it didn't take them long to specify what he can do. In fact, a clear understanding of the scope of the authority they intended to give the executive branch is not clear.
The framers of the Constitution never envisaged the president would become as power as he has in modern times. They erroneously assumed that the legislative branch would be much more influential. James Madison wrote that it would "rarely if ever happen that the executive constituted as ours is proposed to be would have firmness enough to resist the legislature." Only Alexander Hamilton strongly advocated an executive with the power to match the monarchs of Europe.
Over time power has been increasingly usurped by the Executive Branch. Besides power hungry men who have occupied the office, there has also been a realization that Congress, when compared to the president, acts too slowly to make timely responses to national security threats.
In just one example, in the 1952 case of Youngstown (Ohio) Sheet and Tube Co. vs. Sawyer, President Harry Truman, responding to labor unrest at the steel mills during the Korean War, seized control of the mills. A six-member majority of the Court concluded that his action exceeded his authority under the Constitution. However, seven justices indicated that the power of the President is not limited to those powers expressly granted in the Constitution. Had the Congress not implied approval of Truman's seizure of the mills, the action would have been upheld.
Basically Articles I and II give the president the following powers:
# Every Order, Resolution, or Vote of the Senate and House of Representatives may be necessary...shall be presented to the President...and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be re-passed by two thirds of the Senate and House of Representatives....
# Commander in Chief of the Armed Forces when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices
# Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
# Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur
# Nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for...but Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
# Power to fill all Vacancies that may happen during the Recess of the Senate
# He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and...he may adjourn them to such Time as he shall think proper
# He shall receive Ambassadors and other public Ministers
# he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
Executive Orders have been used by every president since George Washington. Most of these directives were unpublished and were only seen by the agencies involved. To implement or execute
the laws of the land, Presidents give direction and guidance to
Executive Branch agencies and departments, often in the form of
Executive Orders (EOs) are legally binding orders given by the President, acting as the head of the Executive Branch, to Federal Administrative Agencies. Executive Orders are generally used to direct federal agencies and officials in their execution of congressionally established laws or policies. However, in many instances they have been used to guide agencies in directions contrary to congressional intent.
Not all EOs are created equal. Proclamations, for example, are a special type of Executive Order that are generally ceremonial or symbolic, such as when the President declares National Take Your Child To Work Day.
Another subset of Executive Orders are those concerned with national security or defense issues. These have generally been known as National Security Directives.
Executive Orders do not require Congressional approval to take effect but they have the same legal weight as laws passed by Congress.
The President's source of authority to issue Executive Orders can be found in the Article II, Section 1 of the Constitution which grants to the President the "executive Power." Section 3 of Article II further directs the President to "take Care that the Laws be faithfully executed."
Executive Orders are controversial because they allow the President to make major decisions, even law, without the consent of Congress. This, of course, runs against the general logic of the Constitution -- that no one should have power to act unilaterally. Nevertheless, Congress often gives the President considerable leeway in implementing and administering federal law and programs.
Sometimes, Congress cannot agree exactly how to implement a law or program. In effect, this leaves the decision to the federal agencies involved and the President that stands at their head.
When Congress fails to spell out in detail how a law is to be executed, it leaves the door open for the President to provide those details in the form of Executive Orders.
If Congress does not like what the executive branch is doing, it has two main options. First, it may rewrite or amend a previous law, or spell it out in greater detail how the Executive Branch must act. Of course, the President has the right to veto the bill if he disagrees with it, so, in practice, a 2/3 majority if often required to override an Executive Order.
Congress is less likely to challenge EOs that deal with foreign policy, national defense, or the implementation and negotiation of treaties, as these are powers granted largely to the President by the Constitution.
As the Commander-in-Chief of the armed forces, the President is also considered the nation's "Chief Diplomat." In fact, given national security concerns, some defense or security related EOs (often called National Security Directives or Presidential Decision Directives) are not made public.
In addition to congressional recourse, Executive Orders can be challenged in court, usually on the grounds that the Order deviates from "congressional intent" or exceeds the President's constitutional powers.
As mentioned above, in one such notable instance, President Harry Truman, was rebuked by the Supreme Court for overstepping the bounds of presidential authority. After World War II, Truman seized control of steel mills across the nation in an effort to settle labor disputes. In response to a challenge of this action, the Supreme Court ruled that the seizure was unconstitutional and exceeded presidential powers because neither the Constitution or any statute authorized the President to seize private businesses to settle labor disputes. For the most part, however, the Court has been fairly tolerant of wide range of executive actions.