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Chapter 4-Executive LegislationExecutive legislation is the use of the presidential office to pass law. Much the same as a king would do when he announces a proclamation. I think most Americans would immediately notice that we do not have a monarchy, divine ruler, king, or magistrate in which we vest such singular power. That does not preclude, however, a president to think, or act as a king.
According to our constitution (see appendix) the Congress is the ONLY governmental body that has legislative power. It states in Article one, “All legislative Powers herein granted shall be vested in a Congress...” Notice the leading word, ALL. There seems to be little room for interpretation. It does not mean most legislation and it does not mean all legislation except what the President may have a whim to pass, it means all.
Black’s Law Dictionary, Seventh Edition describes legislation as:
"1.
The
process of making or enacting a positive law in written form, according
to some type of formal procedure, by a branch of government constituted
to perform this process."
If Congress is the only branch of government “constituted to perform this process,” then the executive branch is prohibited from do so.
One of the earliest examples of a president using executive power to create law was on October 20, 1862. President Abraham Lincoln, in an attempt to replace the southern courts, ordered the establishing of a Provisional Court in Louisiana. This action was unconstitutional for two reasons. First, as mentioned above, ONLY Congress can pass legislation. Second, Article 1, Section 8 of the Constitution authorizes Congress as the only branch to “constitute tribunals inferior to the Supreme Court.”
In January 1992, at the request of the Chairman of the Legislation and National Security Subcommittee, the National Security and International Affairs Division of the General Accounting Office produced a report. The report was to, in part, “determine whether national security directives (NSD), issued by the Bush administration through the National Security Council (NSC), have been used to make and implement US. Policy…” In this report the committee stated: “We also found that 116, or about half of the 247 (directives) examined served three functions; they established policy, directed the implementation of policy, and/or authorized the commitment of government resources.”
