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Jeffrey Rosen talks executive orders with Diane Rehm on NPR

August 5, 2014 by NCC Staff


Barack_Obama_on_phoneHas President Obama gone too far in his use of executive orders? Jeffrey Rosen, president and CEO of the National Constitution Center, discussed the issue on The Diane Rehm Show.

Since delivering his State of the Union address this year, President Obama has issued a series of controversial executive orders on a range of public policy issues, including gun ownership, environmental regulation, LGBT rights and labor law. He may soon give another order to reshape immigration rules.

Supporters say executive action is fair and necessary in the face of congressional dysfunction. Critics say the president has violated the separation of powers.

“The Constitution gives the president the power to ‘take care’ that the laws are faithfully executed,” Rosen told Diane Rehm. “Dating back long in American history, from President Lincoln’s decision to suspend habeas corpus during the Civil War to Franklin Roosevelt’s decision to intern Japanese Americans, presidents have used this power to issues orders that involve unilateral executive action.”

Rosen pointed to data from the American Presidency Project that suggests President Obama has issued the fewest executive orders annually since President Grover Cleveland’s first term. He also cited the leading Supreme Court case on the issue.

“The crucial concurring opinion that defines this entire debate was issued by the great Justice Robert Jackson,” Rosen explained. “He identified three categories of presidential executive orders. When the president acts with congressional support, his power is at its highest ebb. When he acts in the face of congressional disapproval, his power is at its lowest ebb. And when Congress hasn’t spoken clearly, he acts in a ‘zone of twilight,’ to use Jackson’s wonderful phrase.”

“So what we really might do is run through these executive orders and see where President Obama is acting in the face of congressional disapproval and where he’s acting in the zone of twilight,” Rosen suggested. “My quick take is that most of these things are in the zone of twilight; there are [only] a few examples where President Obama has explicitly and openly thwarted Congress’ clear intent.”

Rosen was joined by Jonathan Turley, professor of law at George Washington University; Stanley Brand, partner at the Brand Law Group; and Susan Page, Washington bureau chief for USA Today.

You can listen to the full program online.

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