The Understandable Constitution by Scott Barker
Introduction/ Executive Orders
Dedicated to objective discussion of the Constitution in plain English
This is the inaugural issue of The Understandable Constitution. Who am I? What is the purpose of this project? What’s in it for you? Read on.
Who in the world is Scott Barker?
Before we get to the substance, it seems only fair to tell you a little about myself. I am the son of a World War II bomber pilot and grew up on Air Force bases at home and abroad. I am a 1970 graduate of the United States Air Force Academy and served on active duty for eight years, including assignments in Southeast Asia and the Pentagon. I also have degrees from Oxford University (1973) and Harvard Law School (1981). I practiced as a civil trial lawyer in Denver for forty years and am a Fellow of the American College of Trial Lawyers. I have authored three books on the Constitution: Impeachment, a Political Sword; The Impeachment Quagmire; and The Kings of War, How Our Modern Presidents Hijacked Congress’s War-Making Powers and What To Do About It. I have also written numerous articles and op eds on various constitutional issues. I have been actively involved in Denver East High School’s nationally renowned Constitutional Scholars Program for nine years.
What am I seeking to do with The Understandable Constitution?
I have followed the current turmoil in our national government with a particular focus on the constitutional issues at the eye of this political hurricane. I have been struck by the superficial and sometimes misleading treatment of those issues by the media. At the other end of the spectrum, the esoteric discussions within academia are beyond the reach of even the most interested citizen not familiar with the peculiar language of constitutional lawyers and scholars.
This series of short email essays is my attempt to reach some of the “PEOPLE” for whom the Constitution was created and without whom (in the words of its Preamble) we cannot “secure the blessings of liberty to ourselves and our posterity.”
I plan to use the ongoing historical constitutional battle as a vehicle to enhance my readers’ understanding of and appreciation for our founding document. I promise that I will talk about the Constitution in plain English and with no political agenda. Please give me feedback, so long at it is offered in good faith and with civility. Tell me when you think I am a wrong and let me know what issues you would like me to address.
EXECUTIVE ORDERS
President Trump’s executive orders have been in the headlines nearly every day since he was inaugurated. What is an executive order? Does an executive order have to be obeyed? If not, why not?
The first sentence of Article II the Constitution declares that “the executive Power shall be vested in a President of the United States of America.” Executive orders are issued by the President to implement the executive power vested in his office by the Constitution. Every President since George Washington, except William Henry Harrison (he died shortly after his inauguration), has issued executive orders. They mostly address mundane activities of the executive branch that never make the news. Others are famous. Abraham Lincoln’s Emancipation Proclamation was an executive order. Japanese American citizens were interned during World War II pursuant to an executive order issued by Franklin D. Roosevelt. Harry Truman used an executive order to direct the leaders of the armed forces to desegregate their ranks.
It is important to understand the legal status of executive orders. They have the “force of law,” but are not “laws.” That may seem like lawyer talk, but it is actually careful use of the English language necessary to accurately describe the separation of powers between the President and Congress. Article I of the Constitution says that “All legislative Powers herein granted shall be vested in a Congress of the United States.” Congress passes the laws; the President implements them. Therefore, an executive order merits the “force of law” only if it is based on a law passed by Congress or a power given to the President by the Constitution.
Here’s an example of how this works. During the Korean War, President Truman issued an executive order to his Secretary of Commerce directing him to seize the steel mills and shut down a strike that threatened the production of steel necessary for manufacturing weaponry and ammunition. President Truman claimed that, as the commander in chief, he had the constitutional power to do that during time of war. The owners of the steel mills sued in federal court to block the order, claiming it exceeded his authority. The Supreme Court agreed. In what has become a decision familiar to students of the Constitution, Youngstown Sheet & Tube Co. v. Sawyer (1952), the Supreme Court ruled that the executive order was unconstitutional for two reasons. First, Congress had passed a law, the Taft-Hartley Act, that was inconsistent with the order. Second, the Court ruled that the President’s commander in chief powers did not extend to domestic issues like settling strikes.
A more recent example is President Joe Biden’s attempt to implement a student loan forgiveness program by executive order. In Biden v. Nebraska (2023), the Supreme Court ruled that the order exceeded the President’s constitutional and statutory authority and was therefore unconstitutional.
As of this writing, more than 90 lawsuits have been filed in federal court seeking to block many of the executive orders issued by President Trump. In several of those cases, federal trial courts have temporarily blocked the actions called for in the executive orders. Only two of those cases have reached the Supreme Court; as of this date, the Court has not ruled.
This begs the question: where do the federal courts get the power to block an executive order? The answer is found in a practice of the federal courts known as “judicial review,” the subject of the next issue of The Understandable Constitution.
Want more information about executive orders?
President Trump’s executive orders are posted on the internet at “whitehouse.gov.” If you want more background information, type “executive orders” into your favorite search engine and browse away!