3 ms·

This is an outsider's perspective (I'm Australian) but it seems as though more and more is being done through Executive Orders - the Korean War, the EPA, Obamac

This is an outsider's perspective (I'm Australian) but it seems as though more and more is being done through Executive Orders - the Korean War, the EPA, Obamacare - instead of through proper channels. As far as I can tell, this is because Constitutional amendments are hard to enact (in the case of the EPA and Obamacare) and for reasons I don't understand, Congress doesn't seem to want to declare war any more. Is that a fair assessment, or am I getting only part of the picture?

ellius 8y ago
Sure, but those aren't the only two options. You can just pass normal laws. They don't have to be amendments. That's also difficult, though, due to the extreme partisanship in our political environment, but it's theoretically the fitting solution.
- duncan_bayne 8y ago
  My understanding was that at least some of those - Obamacare and the EPA - required either an Executive Order or a Constitutional amendment, because the powers required were not granted to the Federal Government by the Constitution. Agreed that declarations of war can just be declarations of war, no amendments required. It strikes me as odd that Congresscritters would be okay invading a country, but not okay with declaring war against them.
  - thoth 8y ago
    US Agencies don't need a Constitutional Amendment to come into existence - the usual method is simply a law that Congress passes that the President then signs. E.g. Dept of Energy, Dept of Education, Dept of Homeland Security, Dept of Housing and Urban Development, etc. going way back to the Dept of Foreign Affairs (precursor to Dept of State). Obamacare (Patient Protection and Affordable Care Act) was also created by Congress - bill passed in both houses, signed by the President, upheld by the Supreme Court. That's basically a textbook example of how the system is supposed to work. I'm not sure why the EPA (and others, like FEMA) were created by Executive Order instead. As far as why Congress hasn't declared war since WW2, they've basically rolled up their say into the War Powers Act and the War Powers Resolution which provides for them being informed and issuing continuing approvals. They can then support the President (as Commander in Chief) but not officially declare war.
    - duncan_bayne 8y ago
      My understanding was that the IRS was directed to enact Obamacare by Executive Order, because they (the Federal Government) have no Constitutional mandate in that area. Same with the EPA.
johngalt 8y ago
You've got the right idea behind your assessment, but the pieces in play are a little off. Federal laws (Obamacare/ACA) and federal entities (EPA) are created by Congress. The executive branch (President), can issue executive orders, but they are limited to authority granted by Congress and the constitution. The judicial branch is there to verify that the other two branches are staying within their constitutional authority. Constitutional Amendments are difficult to enact, but that is intentional. Amendments limit government at all levels. Congress can't make any law, and the executive branch can't issue any order that conflicts with the constitution. The only thing you can do is amend the constitution again. The problem is that Congress has become a gridlocked mess while also offloading a lot of it's authority to government agencies acting on it's behalf under the executive branch. Effectively increasing the scope and power of the presidency and by extension the reach of executive orders. This has also pushed the judicial branch into a much more active role than it was designed for. Edit: It's also one of the contributing factors in the heated elections in the USA. As the power of the presidency grows, people become more invested in seeing their person in charge.

ellius 8y ago

Sure, but those aren't the only two options. You can just pass normal laws. They don't have to be amendments. That's also difficult, though, due to the extreme partisanship in our political environment, but it's theoretically the fitting solution.

duncan_bayne 8y ago
My understanding was that at least some of those - Obamacare and the EPA - required either an Executive Order or a Constitutional amendment, because the powers required were not granted to the Federal Government by the Constitution. Agreed that declarations of war can just be declarations of war, no amendments required. It strikes me as odd that Congresscritters would be okay invading a country, but not okay with declaring war against them.
- thoth 8y ago
  US Agencies don't need a Constitutional Amendment to come into existence - the usual method is simply a law that Congress passes that the President then signs. E.g. Dept of Energy, Dept of Education, Dept of Homeland Security, Dept of Housing and Urban Development, etc. going way back to the Dept of Foreign Affairs (precursor to Dept of State). Obamacare (Patient Protection and Affordable Care Act) was also created by Congress - bill passed in both houses, signed by the President, upheld by the Supreme Court. That's basically a textbook example of how the system is supposed to work. I'm not sure why the EPA (and others, like FEMA) were created by Executive Order instead. As far as why Congress hasn't declared war since WW2, they've basically rolled up their say into the War Powers Act and the War Powers Resolution which provides for them being informed and issuing continuing approvals. They can then support the President (as Commander in Chief) but not officially declare war.
  - duncan_bayne 8y ago
    My understanding was that the IRS was directed to enact Obamacare by Executive Order, because they (the Federal Government) have no Constitutional mandate in that area. Same with the EPA.

johngalt 8y ago

You've got the right idea behind your assessment, but the pieces in play are a little off. Federal laws (Obamacare/ACA) and federal entities (EPA) are created by Congress. The executive branch (President), can issue executive orders, but they are limited to authority granted by Congress and the constitution. The judicial branch is there to verify that the other two branches are staying within their constitutional authority. Constitutional Amendments are difficult to enact, but that is intentional. Amendments limit government at all levels. Congress can't make any law, and the executive branch can't issue any order that conflicts with the constitution. The only thing you can do is amend the constitution again. The problem is that Congress has become a gridlocked mess while also offloading a lot of it's authority to government agencies acting on it's behalf under the executive branch. Effectively increasing the scope and power of the presidency and by extension the reach of executive orders. This has also pushed the judicial branch into a much more active role than it was designed for. Edit: It's also one of the contributing factors in the heated elections in the USA. As the power of the presidency grows, people become more invested in seeing their person in charge.