2

From various Supreme Court rulings, we can see that "The President's power, if any, to issue [an Executive] order must stem either from an act of Congress or from the Constitution itself." - Mr. Justice Black, majority opinion for Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 585 (1952).

However, various Executive Orders didn't seem to have their basis in preexisting legislation or in the constitution: Namely, Executive Order 9066. Despite that, this Executive Order was still deemed constitutional by the Supreme Court.

What basis, if any, did that order have in legislation or the US Constitution?

1

The core order and authorization as stated in the order is:

by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion.

A related order, 8972, uses the same phrase for a related purpose:

by virtue of the authority vested in me as President of the United States, and Commander-in-Chief of the Army and Navy of the United States, I hereby authorize and direct the Secretary of War

Truman's Executive Order 10340 similarly ordered

by virtue of the authority vested in me by the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the armed forces of the United States...

to seize steel plants, in light of an strike. In that particular case, SCOTUS ruleds in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 that he did not actually have that authority. There is a difference between claiming an authority and having that authority validated by the courts. In Hirabayashi v. United States, 320 U.S. 81, one of the holdings was that

By the Act of March 21, 1942, Congress ratified and confirmed Executive Order No. 9066, and thereby authorized and implemented such curfew orders as the military commander should promulgate pursuant to that Executive Order.

It was within the constitutional authority of Congress and the Executive, acting together, to prescribe this curfew order as an emergency war measure

(Note that the order preceded the congressional authorization referred to: the curfew order is not part of EO 9066, but is a consequence of it).

In general, you cannot know if an order is really authorized by Congress or the Constitution until the Supreme Court rules on the question. This has happened only a handful of times, notably 5 times in Roosevelt's case.

| improve this answer | |

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.