MrMister
Posts: 272
Joined: 3/6/2005 Status: offline
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For anyone interested I wanted to share some info I was able to dig up on executive powers. It appears that Congress has a few tools to work with on executive power. Thanks again to all who responded. It's always a pleasure to be able to learn something from listening to other folks' perspective and wealth of knowledge. http://www.rules.house.gov/archives/rules_hear08.htm In certain instances since the practice began, Congress has taken action in response to executive orders, frequently to sanction by ensuing statute the policy implemented by an executive order or, on occasions involving controversial matters, to seek to withhold funding for the implementation of an executive order. The options available to Congress in the face of an executive order it opposes are constrained by the nature of a system that requires legislation emerging from the Congress to be signed or allowed to become law by the President. The Congress may seek to nullify, repeal, revoke, terminate or de-fund an executive order, but each such action requires the eventual concurrence of the President (most likely the same President that issued the order in the first place). The Congress may also seek to repeal the underlying statutory authority upon which a particular executive order was based. If the underlying statute is repealed, any ensuing executive order based upon that law is no longer valid. Another tool available to the Congress is to seek to implement a sunset or termination date for statutory authority upon which an executive order is based. In this way, when the sunset date is reached, it is up to Congress to determine whether to renew the provision or let it die. A major tool in the arsenal of the Congress with regard to executive orders lies in the power of the purse. Congress may withhold funds for the implementation of an executive order, thereby directly challenging the President's ability to put in place a particular policy. On the other hand, in instances where the President issues an executive order that Congress does not oppose, but rather Congress wishes to exert its legislative authority in that area, Congress may seek by statute to sanction the action taken by the President. Similarly, the Congress may wish to sanction portions of an executive order, modify others and repeal others. Congress has the option, through the legislative process, of imposing its own stamp on a policy area staked out by executive order. In his book, Constitutional Conflicts Between Congress and the President (Fourth Edition, Revised, University Press of Kansas, 1997), Louis Fisher outlines the tensions that exist between the legislative and executive branches when it comes to the practical application of the legislative power: "The ambiguity of ‘enumerated' and ‘separated' powers is nowhere more evident than in the assignment of the legislative power. Much of the original legislative power vested in Congress is now exercised, as a practical matter, by executive agencies, independent commissions, and the courts. The President's legislative power, invoked on rare occasions in the early decades, is now discharged on a regular basis throughout the year in the form of executive orders, proclamations, and other instruments of executive lawmaking. In self-defense, Congress has developed a complex system that depends on procedural guidelines for agency action, judicial review, committee and subcommittee oversight, and a constantly evolving structure of informal, nonstatutory controls Remedy also exists in the judicial branch, in instances where the legitimacy of an executive order is challenged. There have been, however, only two occasions – once in 1952 and once in 1996 – when executive orders were struck down by the courts.
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