Only twice in the nation’s history has an executive order been invalidated by the courts (Truman’s seizure of the steel mills and a Clinton order forbidding federal contracts with organizations with strike-breakers on the payroll). Up until 1983, Congress asserted authority to independently veto executive orders, but in Immigration and Naturalization Service v. Chadha the Supreme Court held that legislation purporting to overturn an executive order must be presented to the president for his signature like all other legislation. Given the two-thirds vote of both houses necessary to override an almost certain presidential veto, it is now nearly impossible for Congress to repeal an executive order.
With the courts apparently unwilling and Congress unable to block executive orders, we’re left with self-restraint on the part of the president or the ballot box as the only controls on the abuse of executive authority through the use of executive orders. This president has made it clear that, because he won the election, he will do whatever it takes to achieve what he knows to be best for the American people. Before his re-election, Obama would have been more interested in the ballot box; indeed it would have been his “starting point.” But as a second-term president, he can act like a king with only history to judge him. All too often it seems that Obama wouldn’t mind if history judges him to be the best king we’ve ever had.
Like Senator Paul, “I’m against having a king.” Unless Congress gets serious about defending its constitutional turf (by taking the bull by the horns and enacting legislation that effectively preempts any executive orders, rather than engaging in partisan warfare), we could be in for four years of ever more imperial presidential rule. As Justice Felix Frankfurter wrote in Youngstown Sheet and Tube v. Sawyer (the steel seizure case): “The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.”
Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.