Monday, October 01, 2012

Executive orders II

Executive orders II

From a lawyer, Modestinus:
For what it's worth -- though it's peripherally related -- the Harvard Law Review has an excellent piece, "Developments in the Law: Presidential Authority," here.

As for the "executive order" question in general, it seems to offer further evidence for Adrian Vermeule and Eric Posner's controversial contention in
The Executive Unbound that the days of "liberal legalism" and the "Madisonian Republic" are behind us. They're not alone in this observation, of course, but they're probably the two most outspoken (conservative?) voices in favor of it. Given the rapid expansion of the administrative state coupled with the deadlocks in Congress over the last 4 years, the Executive Order has become a convenient tool for the President to advance policy goals under the (dim) guise of law without ruffling too many feathers. Most of the orders are pretty routine and there's yet to be a sustained legal challenge to the President's right to use them. That could change if/when Executive Orders start to circumvent existing legislation. Then you're -- perhaps -- talking about a separation of powers issue. But given the deferential bend of the Supreme Court, I'm not sure how confident anybody can be that it'll try to seriously curtail the President's authority to use Executive Orders.

There's an under-appreciate analogue to Executive Orders in the realm of foreign affairs law and that's the so-called "Sole Executive Agreement" -- an instrument which is mentioned nowhere in the Constitution. SEA's allow the President to enter into international agreements with foreign countries without having to utilize the treaty ratification process spelled out in Article II of the Constitution. In the last 50 years, SEA have overtaken Article II treaties (and their close cousin, the so-called Congressional-Executive Agreement) by several orders of magnitude. The Court tried to spell out the limits of SEA's several years ago in the Medallin case, but for the most part the Executive has considerable latitude when it comes to entering into foreign agreements. Now, the one saving grace of SEA's -- as far as we know -- is that they cannot be used to replace existing domestic law or create new domestic law. At "most" they seem only able to provide marching orders to Executive/administrative agencies or provide a general policy template for such agencies. Of course, global legalists opine that they also bind the U.S. under international law and therefore should be taken seriously, but that just begs the question, "Who takes international law seriously?"

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