Understanding the Executive Power of the President

Robert Dilenschneider

With less than 20 days before one of the most important elections in American history, I have prepared this note on executive privilege, executive orders and executive actions that may be of interest.

Many wonder if either Hillary Clinton or Donald Trump will be able to make much difference in office if, for example, the Democrat is faced with a Republican-led Congress or the Republican president must deal with a Democrat-controlled Congress.

Be sure that either Clinton or Trump will invoke “executive privilege,” “executive orders” and “executive actions” to advance their agenda. Each of these is quite different, but all three are used by presidents to get their way when the path is firmly blocked on Capitol Hill or they are fighting legal action.

Executive privilege is power claimed by the president to thwart interventions to the executive branch by Congress and the judiciary seeking to access sensitive information and personnel issues relating to the executive branch.

Ironically, the concept of executive privilege is not mentioned in the Constitution. However, the Supreme Court has upheld the concept as part of the doctrine of separation of powers, especially in areas of national security.

Please note that while executive privilege is often used to avoid abiding by subpoenas, the whole concept is far from settled law.

Famously, President Truman issued a secrecy order to keep Congress from getting FBI and White House data on security problems. Truman had security files moved to the White House and ordered his team not to testify in Congress on anything involving security. During the McCarthy hearings into alleged Communist infiltration of government, President Eisenhower claimed executive privilege to keep internal conversations and meetings and notes (well before email) private. Likewise, Defense employees were not permitted to testify before McCarthy or provide any documents he sought.

The most famous case is United States v. Nixon. In 1974 Watergate special prosecutor Archibald Cox ordered President Nixon to produce White House Oval Office audiotapes. Nixon invoked executive power to refuse. The Supreme Court noted that there is a valid need for protection of communications among government officials but said that certain procedures must be invoked to protect public interest with the courts put in the difficult position of deciding which branch of government prevails. The court said this is a difficult situation that is to be avoided as much as possible. “Once executive privilege is asserted, coequal branches of the Government are set on a collision course.”

Bill Clinton in 1998 became the first president since Nixon to assert executive privilege and lose in court, when a federal judge ruled that Clinton aides could testify in the Monica Lewinsky case.

Executive orders are directives issued to federal agencies, department heads and other federal employees by the president using his constitutional powers. They are similar to written orders or instructions issued by CEOs to department heads or directors. They have the force of law, although, of course, they can be challenged in the courts. They are published in the Federal Register and take effect 30 days later. They bypass Congress but may not be used to circumvent laws or direct agencies to do anything illegal.

Two of the most famous executive orders came after the United States was attacked. After Pearl Harbor in 1941, President Roosevelt issued executive order 9066 (they are numbered historically) ordering the internment of 120,000 Japanese Americans, although many were U.S. citizens. After 9/11, President Bush issued an executive order to combine more than 40 federal agencies into the Cabinet-level Department of Homeland Security.

Although Senate Majority Leader Mitch McConnell famously decreed Republicans would do everything in their power to ensure President Obama would be a one-term president, Obama prevailed more than many expected he would by issuing executive orders. For example, in a 2012 order known as the Deferred Action for Childhood Arrivals (DACA) program, Obama decreed that people under 30 who came to the United States before the age of 16 could get a two-year deferral from deportation, under certain conditions.

Executive orders are not immutable. The president may change or abolish an executive order at any time or supersede an existing order. Incoming presidents may keep or replace or revoke previous orders. Rarely, Congress may pass a law that alters an executive order. The Supreme Court may declare an executive order unconstitutional.

Executive actions are even more common. Early in office Obama called a press conference and announced he was issuing 23 "executive actions" addressing gun violence. He called for universal background checks on anyone trying to buy a gun and restoring a ban on military-style assault weapons. But they carried no legal weight.

There have been a number of myths about Obama’s use of executive orders. He did not issue an order keeping his records (e.g., birth certificate) secret. In fact, he issued an order reversing a Bush order so that records of former presidents are no longer as secret as they were. Obama did not sign an order giving him a third term, contrary to Internet gossip. And he did not sign an order getting rid of super political action committees, which give huge amounts of money to the political process, although he dislikes them. He is urging Congress to pass a constitutional amendment outlawing them.

Although President Obama has issued 252 orders so far in his presidency and undoubtedly will issue more, he is lagging behind his predecessors. George W. Bush had 291 executive orders in eight years, and Bill Clinton built up a total of 364 executive orders during his eight years. Obama actually has issued the fewest per year—33—since Chester Arthur. Franklin D. Roosevelt issued 3,721.

The point: Expect the new president to use these three “opportunities” to advance their agenda and expect each to be challenged and to receive considerable attention from the news media.

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Robert L. Dilenschneider is chairman and founder of the Dilenschneider Group, Inc.