It’s widely expected that president-elect Barack Obama will do something about George W. Bush’s executive orders, which have played a significant role in dismantling America’s system of “checks and balances” over the past eight years. Obama, in addition to doing something about Bush’s executive orders, is expected to also issue a few executive orders of his own.
Obama will most likely issue executive orders that supersede the executive orders Bush has issued during his presidency. That is, in most cases, what incoming presidents do when they find previous presidents have done something unfavorable.
These executive orders to supersede Bush’s may include executive orders to rescind the ban on embryonic stem cell research, to overturn the ban on U.S. aid to international organizations which promote abortion overseas, and to reinstate the ban on drilling in domestic lands, which would specifically “ stop the federal Bureau of Land Management from opening about 360,000 acres in Utah to oil and gas drilling.”
Jonathan Turley, a George Washington University law professor who often appears on Countdown w/ Keith Olbermann, said of Bush’s executive orders, “ Until President Obama gets rid of all these executive orders, he'll be sharing his presidency with his predecessor. And added, "Now that's a particularly obnoxious thought for an administration that was elected for change.”
In an AP article posted on RAW STORY in July, it was reported that Obama pledged that as president he “would order his attorney general to scour White House executive orders and expunge any that “trample on liberty.””
Days after this statement, Bush issued an executive order that was deemed an intelligence overhaul.
While Obama’s willingness to “scour and expunge” executive orders that “trample on liberty” may still exist, it appears that rolling back executive orders which allow for torture and violations of the rule of law to continue at Guantanamo will not be dealt with soon enough. Obama is prepared to take his time when working to close Guantanamo because, “there is no process in place to make that decision until his national security and legal teams are assembled.”
For those unaware of what an executive order is, executive orders have been issued by presidents to direct operations of executive branch agencies. Executive orders have been used by presidents since 1789 and while there is nothing in the U.S. Constitution explicitly permitting executive orders, Article II, Section 1 and Article II, Section 3, which calls on the president to “take Care that the Laws be faithfully executed”, are both often cited when making the case that executive orders are constitutional.
Slate magazine offers a much more critical and comprehensive view on whether executive orders are constitutional or unconstitutional:
What does Obama’s statement mean for those who wish to see Bush policies repudiated? What are the chances that any sort of “scour”-ing is effective if Obama does indeed ask his attorney general to “expunge any”?
Executive orders issued by the Bush administration have sparked fear in the minds of many Americans (professors, academics, and non-academics) who have reason to believe such executive orders could be used to make Bush a de facto dictator since many of these orders allow Bush to side-step the other branches of government and make autocratic laws.
Since being appointed president by the Supreme Court after the Florida recount in 2000, Bush has issued over 250 executive orders. In comparison to previous presidents, this number is normal. However, the content of these executive orders have been particularly alarming to those who believe this nation should follow the Rule of Law---the U.S. Constitution.
The AP article that suggested Obama was interested in reviewing unconstitutional and unnecessary executive orders deeply undercuts the need for such a review by misrepresenting the kinds of executive orders issued. While the AP is correct that “Bush has increasingly relied on executive orders to dictate policies without seeking congressional approval,” they are wrong to only characterize his orders as ranging “from restrictions on striped bass fishing to sanctions against Myanmar's [Burma’s] government.” There’s much more to Bush’s use of executive orders than saving striped bass or promoting human rights in Burma and certainly, Obama would not have felt the need to talk about a review if these were the only kind of orders that had been issued throughout Bush’s presidency.
It is good that Obama has indicated that he will review executive orders and supersede them with executive orders to deal with abortion, stem cell research, and oil and gas drilling. But what about the executive orders Bush has issued which violate the rule of law, etc.?
While Obama did issue a joint resolution in November of 2007 to “halt a rush to war with Iran” that cited Executive Order 13382: Blocking Property of Weapons of Mass Destruction Proliferators and Supporters and Executive Order 13324: Blocking Property and Prohibiting Transactions With Persons who Commit, Threaten to Commit, or Support Terrorism and stated that these could not be used as a pretext for war, there is no other evidence on his Senate website that he has raised issue with previous abuses of power by Bush or the Executive Branch.
For a person who used to be a constitutional law professor, Obama now has an obligation to focus the public’s attention on what has happened to the rule of law in this country over the past eight years. He must show that he understands the scope of unconstitutional and unnecessary powers that have been claimed by the Executive Branch under the Bush Administration.