Presidential Proclamations and Executive Orders

I figured I’d use today to give y’all a little civics lesson about presidential proclamations and executive orders, especially since our current president just used an executive order to establish Christmas Eve a national holiday this year.

Before I start though, if you are interested in researching all presidential proclamations for yourself, you can click this link here, or for executive orders, click here, which will take you to the Federal Registrar where you can look at each president and each proclamation or executive order they’ve ever declared.

ONE: THE CONSTITUTION, PROCLAMATIONS AND DEFINITIONS

First things first, I cannot give you a clear definition for a presidential proclamation since neither are mentioned or defined in the Constitution. The founders did not define or include any instructions or guidance on this matter in Article II of the Constitution because they did not intend on the president having arbitrary executive power. Thus, there is no specific provision within the Constitution authorizing the president to issue an executive order a proclamation. Rather these two presidential powers are inferred from the power of the executive.

Presumably, the founders were extremely reticent to give the president any individual or plenary authority because of their aversion to “king-like” power. The president cannot make law or do anything that results in the force of law since he is not part of the lawmaking branch—Congress. As I’ve stated many times, Locke emphasized the importance of never allowing the legislature to give away their lawmaking powers because such powers were given to them first, by the people, and are not their powers to give away. We the people are most directly connected to our legislators because they are the ones making the laws we must then follow. We must be able to keep them accountable.

This all changes if the legislature gives away their lawmaking powers to another branch.

With this in mind, here is how the House Government Operations Committee defines both executive orders and proclamations:

Executive orders and proclamations are directives or actions by the President. When they are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law. . . . In the narrower sense Executive orders and proclamations are written documents denominated as such. . . . Executive orders are generally directed to, and govern actions by, Government officials and agencies. They usually affect private individuals only indirectly. Proclamations in most instances affect primarily the activities of private individuals. Since the President has no power or authority over individual citizens and their rights except where he is granted such power and authority by a provision in the Constitution or by statute, the President’s proclamations are not legally binding and are at best hortatory unless based on such grants of authority. The difference between Executive orders and proclamations is more one of form than of substance. . . .

In other words, according to the legislative committee, both executive orders and proclamations hold the force of law—even though in reality, these orders are not law and can never be law since they are created by the executive rather than the legislative branch.

Executive orders are orders directed to all the government agencies in the bureaucracy. At least, in theory that is what an executive order is. So, if the president were to say that he wants everyone in the bureaucracy to start wearing ugly Christmas sweaters in December, he would have the power to do so since he is the chief executive and he’s directing his executive agencies in a specific way. This is the reasoning behind this power that is.

In other words, according to the legislative committee, both executive orders and proclamations hold the force of law—even though in reality, these orders are not law and can never be law since they are created by the executive rather than the legislative branch.

Executive orders are orders directed to all the government agencies in the bureaucracy. At least, in theory that is what an executive order is. So, if the president were to say that he wants everyone in the bureaucracy to start wearing ugly Christmas sweaters in December, he would have the power to do so since he is the chief executive and he’s directing his executive agencies in a specific way. This is the reasoning behind this power that is.

Proclamations? Hmmm, proclamations in some cases are not nearly as impactful as executive orders (i.e. the proclamation to establish a Worlds Aid Day, or National Family Week, or World Freedom Day. All real things, mind you). However, in some cases, proclamations are far more impactful than executive orders since they affect citizens far beyond the sphere of the bureaucratic agencies.

Let’s look at history for a deeper understanding.

TWO: HISTORICAL EXAMPLES

George Washington issued the first presidential proclamation. On April 22, 1793, Washington formally declared the United States neutral in the war between England and France. He asked the citizens of the United States to:

. . . avoid all acts and proceedings whatsoever, which may in any manner tend to contravene such disposition . . . of . . . a conduct friendly and impartial toward the belligerent powers . . .

However, he found enforcement of this to be difficult and eventually called on Congress, who legally and formally declared national neutrality with the Neutrality Act of 1794. This type of executive, plenary power has far reaching effect, even beyond that of executive orders.

Perhaps the most well-known and lauded “proclamation” is the one done by Abraham Lincoln, known as the Emancipation Proclamation. But Lincoln issued numerous proclamations while in office, some going as far as to suspend the rights of citizens to habeas corpus (essentially the right to trial and the right to not be detained by government without cause). Keep in mind, the executive’s powers grew as a result of a “national emergency”.

However, it wasn’t until years later, under Woodrow Wilson that executive orders and proclamations began to become what they are today.

With the onset of World War I, President Wilson was able to expand the discretion of the presidency through the use of emergency powers. During his tenure, Wilson issued over 1800 executive orders. This period appears to mark the beginning of legislative and judicial tolerance towards expanded executive power during times of national emergency. (fas.org)

The use of proclamations and executive orders has simply exploded from here, giving both the judicial and legislative branches a headache as they try to sort through the Constitutionality of such executive force. One Supreme Court case called Youngstown, for the case name, Youngstown Sheet & Tube Co. v. Sawyer provided a loose description and interpretation of such executive power.Justice Jackson wrote out a brief but solid interpretation of executive power in this realm which has colored the government’s behavior since.

This quote gives a brief description:

Briefly stated, these three categories include executive orders and proclamations issued pursuant to: (1) an express or implied authorization of Congress (presidential authority is at its maximum); (2) are incompatible with the expressed or implied will of Congress, and thus rely solely upon his constitutional authority (presidential power is at its lowest ebb); and (3) undefined powers that lay in a “zone of twilight” (presidential power is uncertain). 

Again, notice how vague these standards are. Essentially, we’re discussing arbitrary power since there is no clear or laid out description of this power. It is left to the whims of the people on the bench or in Congress.

Arbitrary power has no limitations, no confines.

CONCLUSION

President Trump just used this power to issue another national holiday: Christmas Eve. Most people probably thought nothing of it, but I always notice anything any president does that is arbitrary. Arbitrary power is cunning. It can be used for so many good things, all the while having the potential to be wielded in ways that would obliterate liberty.

We need to be aware of the power those above us possess and have the potential to possess.

At least then, we won’t be caught by surprise.

The Liberty Belle

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