Executive Orders vs Signing Statements

[Pryderi]

I know the ABA is looking at Bush's signing statements, but what are the legalities involved in presidential executive orders? Can executive orders overturn legislation that has already been signed and enacted into law?

[no_hypocrisy]

1. Congress can legislate and enact a statute that will either

qualify/restrict the effects of an executive order or nullify it altogether. Checks and balances.

[lonestarnot]

3. We still have those? Checks and balances?

[SteppingRazor]

2. I assume you're talking about one of Bush's first acts as president...

the executive order that stated he would ignore the Presidential Records Act.

To answer your question, the order seems pretty obviously unconstitutional on its face, but to my knowledge there hasn't been a court case about it -- unless someone actually does something and takes people to court over these things, they'll just keep doing them.

[Pryderi]

5. Yep. That's the particular one I was thinking about. There was a..

lawsuit, but I don't know if anything happened after this story:

ARCHIVE, HISTORIANS ASK JUDGE TO RETHINK DISMISSAL,
PRESIDENTIAL RECORDS ACT CASE STILL NOT RESOLVED;
NEW BUSH ORDER ADDS 140 DAYS TO PROCESSING TIME;
JUDGE RECOGNIZED INJURY BUT THOUGHT IT MOOT.

Washington, D.C., April 30 - A federal judge's dismissal last month of a landmark open government case was based on two factual misconceptions and deserves re-opening, according to court filings last week. The lawsuit challenges President Bush's Executive Order 13,233 that gave former Presidents and their heirs (as well as former Vice-Presidents for the first time) indefinite authority to hold up release of White House records.

The National Security Archive and other plaintiffs in American Historical Association, et al. v. National Archives and Records Administration asked Judge Colleen Kollar-Kotelly to reconsider her March 29, 2004, opinion dismissing the case on standing, "justiciability" and ripeness grounds. The court's opinion mistakenly assumed that no Reagan-era records were continuing to be processed under the order, and that plaintiffs were not challenging the withholding of 74 specific pages of records.

Archive director Thomas Blanton filed a declaration with the court describing dozens of pending Archive requests at the Reagan and Bush presidential libraries, with a specific example of current withholding that claims the "presidential advice" privilege created by the Bush Executive Order. Public Citizen Director Scott Nelson, the lead attorney for the plaintiffs, filed the challenge to the 74-page withholding and the accompanying legal motion for reconsideration.

In the government's response filed last Friday, the Department of Justice admitted that the court's opinion needed to be modified, but urged Judge Kollar-Kotelly simply to adopt the government's previous arguments and maintain the dismissal. An associated declaration from the Assistant Archivist for Presidential Libraries admits that the new Bush executive order adds an average of 140 days to processing time for Freedom of Information Act requests at the libraries, but claimed that such a delay was not significant because requesters for classified documents must wait four years (!) before an archivist even takes up the request.

http://www.gwu.edu/~nsarchiv/news/20040430/index.htm

[atreides1]

4. Found this information

Presidents of the United States have issued executive orders since 1789. There is no United States Constitution provision or statute that explicitly permits this, aside from the vague grant of "executive power" given in Article II, Section 1 of the Constitution and the statement "take Care that the Laws be faithfully executed" in Article II, Section 3




To date, U.S. courts have overturned only two executive orders: the aforementioned Truman order, and a 1996 order issued by President Bill Clinton that attempted to prevent the U.S. government from contracting with organizations that had scabs on the payroll. The Congress may overturn an executive order by passing legislation in conflict with it or by refusing to approve funding to enforce it. In the former, the president retains the power to veto such a decision; however, the Congress may override a veto with a two-thirds majority to end an executive order.

The precedent in Schechter Poultry Corp. v. United States might be of some relevance. The Supreme Court ruled that congress cannot give the president power to create laws, so it would follow that an executive order in restraint of a law, not enforcing, would be beyond the president's power.