Good Question: When Can The President Make Law Without Congress?
MINNEAPOLIS (WCCO) – We learned in grade school that Congress makes the laws. But President Barack Obama has hinted that he is willing to go around lawmakers in order to change the gun laws after the Newtown, Conn., school shooting.
“I’m confident there are some steps we can take that don’t require legislation and are within my authority as resident,” Obama said Monday.
So when can the president make his own laws?
“It’s surprisingly common,” said Mark Osler, a University of St. Thomas law school professor who has studied presidential powers.
“It comes from the inherent power of the president as chief executive — that is, over the administration in the executive branch, and all the employees there,” Osler said.
The president can’t exactly contradict a law that Congress has passed. But he can tell his staff to not enforce it. That’s what’s happening with the DREAM Act for young undocumented immigrants.
Osler worked in Clinton’s justice department, where he received direction from the then president.
“We followed that direction, because it was coming from the boss,” Osler.
According to the American Presidency Project, Bill Clinton issued executive orders 200 times in his first term. George W. Bush issued 173. Through December, Obama has issued 144 executive orders in his nearly-complete first term.
“In war time it’s more common, I think FDR used it 3,000 times,” Osler said.
The original purpose of the executive order was for war time or other emergencies, when there just wasn’t time to go through Congress.
The president during World War I, Woodrow Wilson issued 1,803 executive orders.
In modern times, presidents have used executive orders when Congress doesn’t seem to be able to find a solution.
“That’s the frustration,” for Obama, Osler said. “He’s throwing up his hands to some degree.”
Of course, it might be tempting to use executive order all the time to avoid Congress, but that comes with danger, too.
“The danger in a president who uses it a lot…it seems a way of evading the checks and balances,” Osler said.
Also, the solution and policy can be short-lived, because there’s an easy way of overturning an executive order: signing another executive order, according to Osler.