Executive Orders: Issuance and Revocation
pursuant only to the President’s “own constitutional powers minus any constitutional powers of Congress over the matter.”[1] In such a circumstance, presidential action must rest upon an exclusive power, and the Courts can uphold the measure “only by disabling the Congress from acting upon the subject.”[2]
Applying this scheme to the case at hand, Justice Jackson determined that analysis under the first category was inappropriate, due to the fact that President Truman’s seizure of the steel mills had not been authorized by Congress, either implicitly or explicitly. Justice Jackson also determined that the second category was “clearly eliminated,” in that Congress had addressed the issue of seizure, through statutory policies conflicting with the President’s actions.”[3] Employing the third category, Justice Jackson noted that President Truman’s actions could only be sustained by determining that the seizure was “within his domain and beyond control by Congress.”[4] Justice Jackson established that such matters were not outside the scope of congressional power, reinforcing his declaration that permitting the President to exercise such “conclusive and preclusive” power would endanger “the equilibrium established by our constitutional system.”[5]
These standards remain applicable in the modern era. In 1996, the United States Court of Appeals for the District of Columbia invalidated an executive order issued by President Clinton on the grounds that it conflicted with the National Labor Relations Act (NLRA).”[6] The order at issue prohibited federal agencies from contracting with employers that permanently replaced striking employees. Upon determining that the order conflicted with a provision of the NURA guaranteeing the right to hire permanent replacements during strikes, the court of appeals held that the statute preempted the executive order, stripping it of any effect.”[7]
Congressional Revocation and Alteration of
Executive Orders
Further, as long as it is not constitutionally based, Congress may repeal a presidential order, or terminate the underlying authority upon which the action is predicated. For example, in 2006, Congress revoked part of an executive order from November 12, 1838, which reserved certain public land for lighthouse purposes.”[8] Congress has also explicitly revoked executive orders in their entirety, such as in the Energy Policy Act of 2005, which revoked a December 13, 1912, executive order that created Naval Petroleum Reserve Numbered 2.[9] Another example of the express nullification of an executive order by Congress involved the revocation of an executive
- ↑ 343 U.S. at 637.
- ↑ Id. at 637-38.
- ↑ Id. at 638-39.
- ↑ Id. at 640.
- ↑ Id. at 638, 640-45.
- ↑ Chamber of Commerce v. Reich, 74 F.3d 1322 (1996).
- ↑ Id. at 1339.
- ↑ P.L. 109-241, § 504(a); 16 U.S.C. § 668dd note. “In use from the earliest days of the Republic, the Executive Order was at first employed mainly for the disposition of the public domain, for the withdrawal of lands for Indian, military, naval, and lighthouse reservations or other similar public purposes.” W.P.A. Historical Records Survey, Presidential Executive Orders, Vol. I, List, at v (1944).
- ↑ P.L. 109-58, § 334; 10 U.S.C. § 7420 note.
