Executive Orders As Raw Power
There are tons of academic papers showing the expansion of the presidency. They often bring up the many executive orders issued by presidents that directly hurt Americans. Executive Orders (E.O.’s) are federal directives that, for brevity’s sake, can be “laws” or policy executions as long as they do not violate the Constitution.
Executive Orders have always been a nebulous subject (see here for a more detailed look at executive orders). A landmark case called Youngstown that established the Youngstown Framework, which provides a general idea of the factors a court looks at when considering executive action’s constitutionality (e.g., congress’ approval of the president’s action).
Either way, American jurisprudential theorists, academics, and Americans, in general, all sit in this weird feeling that these E.O.’s act a lot like legislation, not from the legislature. The more E.O.’s we allow to act like legislation, the more the executive pushes its power boundaries.
Now, there are likely many Executive Orders that affect privacy. Considering there are over 14000 E.O.’s on the books as of this writing. We will go over one E.O. (which ends up being three), the nefarious Executive Order 12333.
Executive Order 12333, (several amendments: 13355, 13470)
a. The Background
This is considered one of the big bad E.O.’s that infringes American’s privacy. Let us set the stage. It is the early 1980’s, and it was tapedecks galore. The U.S. is entering a new period of escalation of the Cold War. The rise of the “New Right” was coming to fruition when charismatic former actor Ronald Reagan becomes U.S. President.
Reagan was a successful yet problematic leader for America. We had economic gains at the cost of many Americans’ economic solvency. Many of our everyday Americans’ privacy was put under the foot of a heavy surveillance government. Which was contrary to the small-government message the Reagan administration pushed.
B. E.O. 12333
E.O. 12333 allows the U.S. intelligence community to collect information and disseminate it to other agencies if there is an approval framework by the U.S. attorney general (A.G.) and the Director of National Intelligence (D.N.I.). The types of information obtained could be in the course of an investigation or could be information that “may” indicate involvement in violating law whether it be federal, state, local, or foreign. The breadth of the previous statement, as you may have gleaned, is massive. That is essentially any law, on the books, anywhere, period end of the story.
It increased the ability for governments to collect and share information and to do so cooperatively. It is pretty heinous that we allowed it and were not upset. However, times were different. The feeling of nuclear annihilation was ever-present in our society.
President George W. Bush and his administration amended the order twice through other executive orders. Once in 2004 (E.O. 13355), and the other in 2008 (E.O. 13470). Both amendments increased the scope of Executive Order 12333. Further, the amendments created new positions in the intelligence community and set other directives. These E.O.’s did not end up on our radar till the massive N.S.A. leak that showed the collection of data center communications from Google and Yahoo (see here for The Guardians reporting on the leak). This was when privacy concerns were critical to our country as well. The order and its amendments have been challenged by both civil liberties organizations and even a former state department official (John Tye, also a government whistleblower).
Nevertheless, this E.O. has remained unchallenged. It indeed does the brunt work for creating a bypass for mass unfettered electronic surveillance without even asking the American people what they think of this “legislation.” No proponents of surveillance will call it as such. Nevertheless, be aware, these E.O.’s are practically speaking acting as legislation.
What Should Happen Next,
I took Constitutional Law as a class and learned about Executive Orders. Their existence was disturbing. It makes sense that presidents can create “orders” that show policy direction. It never made sense that even with the doctrines preventing the presidents’ ability to use them as legislation, they acted as legislation nevertheless. The abstract rules and guideposts around Executive Orders are non-existent. It is a vast grey area of the law that allows the significant presidential leverage to do things that appear to be laws.
Further, they give gross amounts of power to the governments’ administrative agencies. However, they are fine as long as the presidents’ decree has some semblance of backing in the legislature and does not grossly offend the Constitution. The proliferation of them, via both Democrats and Republicans, shows how anti-democratic decisive party politics and executive orders are in practice.
Executive Orders are not the illness in itself, sadly. It is merely a symptom of the problem of an over-bloated executive branch. The powers have grown significantly over time, and installing more power in the people is essential to our democracy. If executive orders play any role, they should be communicating to the public ways the executive branch enforces the laws and maybe, as a bulletin board for the people. Nevertheless, that is a far cry from what they are doing right now.
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