The Constitution sets out that laws in the US must originate from Congress and be signed by the President. But, writes Charles U. Zug, lawmaking can occur outside of the normal legislative process such as via international treaties, and arguably, from presidential executive orders. In this Long Read, he looks at the role of the Constitution in adjudicating when orders between different parts of government conflict and the resources it offers to help solve these conflicts. Often, action in the face of crises requires improvisation with blurred lines between what actions are permissible and legitimate by the executive branch of government.

US Presidents are often accused of acting lawlessly when they create or alter public policy without Congressional authorization; their use of executive orders led both Presidents Obama and Trump to be accused by some commentators of running an “Imperial Presidency”. Opponents of regulations claim that rules written and enforced by federal agencies are less than truly legal, and that the regulations they dislike are therefore usurpations of Congress’s lawmaking authority. These views assume a mistaken understanding of what law is under the Constitution, which values lawfulness while also prioritizing democratic imperatives like fairness, responsiveness, and political judgement. To pursue these complex ends, the Constitution authorizes all three branches of government to participate in both the creation and the administration of law.

Consider a recent example. During a recent Senate debate, Senators Michael Bennett and Tommy Tuberville sparred over a proposed Defense Department order that would have expanded access to abortion within the armed services. Previously, Tuberville had placed a hold on the Senate’s promotion of several thousand officers to force Secretary of Defense Lloyd Austin to reconsider the agency’s proposed policy on abortion. Replying to criticisms from Senator Bennett, Tuberville asserted that the Secretary’s order was a usurpation of Congress’ Constitutional authority to make laws.

What counts as law under the US Constitution?

This anecdote reflects an intuition that many Americans have about what counts as law under the Constitution. In this view, true laws must originate from the familiar procedures specified in Article I Section VII (which sets out the House of Representatives and the Senate as lawmaking bodies) while other forms of state action fall into a category of governmental authority that is subordinate to laws passed by Congress and signed by the president. Matters of policy that rise to the level of “legal” are therefore outside the authority of the president and administrative agencies and must be taken up by Congress if they are to be handled Constitutionally.

There are numerous reasons for questioning this view, some of the best of which were articulated during the American founding era. Indeed, what should count as “law” under the Constitution was debated during the Philadelphia Convention in 1787 and subsequently during Ratification. A major disagreement between the Federalists and the Anti-Federalists concerned whether the national government should be authorized to act directly on individual citizens of the Union. Under the Articles of Confederation, Congress had had to make requests from the state governments to enact and enforce national policy. Consequently, the Confederation Congress had not been able to carry out its aims because it had lacked both means for coercion (police) and a way to fund means for coercion (taxes). The so-called “laws” passed by the Confederation Congress had therefore been more like voluntary requests issued by an alliance to sovereign nations than binding laws enacted by a functioning state— “mere recommendations,” to quote Alexander Hamilton, “which the States observe or disregard at their option.”

Thus, one of the most important structural questions to arise at the founding concerned the Constitution’s lawmaking authority. The Constitution, wrote Hamilton in the same paper, “must be founded, as to the objects committed to its care, upon the reverse of the principles contended for by the opponents of the proposed Constitution. It must carry the agency to the persons of the citizens.”

Lawmaking outside the normal legislative process

It is important to note that Hamilton’s argument here applies to the Constitution as a whole, not just to the Congress. Hence, Article VI Section II declares all laws under the Constitution and the Constitution itself to be “supreme.” But what are the “laws” that this clause has in mind? Are they limited to laws passed under Article I Section VII, or does the Constitution contain other sources of legal authority?

Consider that treaties, like Constitutional Amendments, derive their authority from procedures other than the “normal” legislative process yet count as law nonetheless. Other examples include the Impeachment and Removal process, Congress’ authority to disqualify removed officials from holding office, and certain powers granted to the president by the Constitution, including reprieves and pardons, vetoes, administrative nominations, recess appointments, and the authority to receive foreign ambassadors. While these procedures fall outside the “normal” legislative process, decisions reached through them have the force of law in the sense that they are binding on those whom they affect. An official removed from office, for example, could not legally remain in that office, nor could an official disqualified legally seek appointment to that office or any other. If the president pardons someone for a crime, a court cannot legally detain that person for their original crime.

A reasonable rejoinder is that Congress’ legislative authority differs from the powers of the president and the courts in that its scope is general rather than specific. Congress is the only branch authorized to make decisions that are binding on the whole Constitutional community, including state actors and ordinary citizens. Yes, the president can give commands to federal agencies, and federal courts can issue rulings that are binding on lower courts; but only Congress can pass statutes that are binding on everyone.

There is a core of truth to this argument, to be sure. Article I Section VII authorizes Congress to fund the government’s operations and create the agencies that comprise the federal bureaucracy. Yet the distinction between “general” and “specific” is not so easily applied in practice. When the president issues an order, the federal personnel being directed are authorized to enforce the order in ways that directly affect individual members of the public. An executive order to the Department of Transportation, for example, could directly affect people being screened by Transportation Security Administration —potentially millions of travelers over the course of years.

Who “wins” when orders conflict?

The question of what counts as “law” under the Constitution becomes even more complicated when these decisions come into conflict—when there are contradicting orders regarding the government’s legal position. Such conflicts force us to ask which law should “win” and which should “lose,” a question whose answer presupposes a hierarchy that the Constitution does not make explicit.

Photo by Anthony Garand on Unsplash

Supposing Congress passed a law permitting a removed and disqualified federal judge to be appointed to a judgeship, in effect undoing the disqualification. How should such a dispute be settled? Which state action, the original removal and disqualification or the subsequent statute, counts more as a “law” than the other? Relatedly, can presidents pardon themselves in addition to others convicted of a crime? Jeffrey Tulis and Corey Brettschneider have convincingly argued no. But supposing a president issued such a pardon nevertheless—what would be the appropriate Constitutional remedy? If Congress passed a law undoing the president’s self-pardon or the Supreme Court issued a ruling undoing the pardon, and the president still refused to comply, in what institutional venue should the dispute be adjudicated?

When should Congress step in and make law?

These kinds of questions become more interesting still when we consider powers of the government that are not explicitly discussed in the Constitution’s text but that are legitimately inferred given the duties of the official in question. Presidents are frequently accused of acting lawlessly when they give executive orders that some group or party finds objectionable. The plausibility of this kind of accusation stems from the fact that executive orders are a form of state action that Keith Whittington calls “constitutional constructions”—unspecified in the Constitution, they were developed so presidents could perform their Constitutional responsibilities by issuing orders to federal agencies. As such, they too are “laws” in the sense that they are binding on those to whom are directed. No one doubts, for example, that had members of the armed forces refused to carry out Harry Truman’s command to desegregate the military in 1948, they would have been acting unlawfully—even though many officials objected to Truman’s decision at the time.

The deeper question is whether a given order should have instead taken the form of Congressional action through the procedures of Article I Section VII. Critics of the bureaucracy raise this question when they claim that administrative rules exceed the authority of the bureaucracy and must instead be authorized by Congress. These critics propose drawing a distinction between substantive policy matters that require codification through Congress and matters that can be left to presidential or administrative discretion.

The Constitution offers little guidance on these questions

Is there a meaningful Constitutional basis to this distinction, one that goes beyond the differing preferences we might have for various public policies?

If we are looking for unambiguous guidance in the Constitution itself, then the answer is clearly no. Indeed, as Jeffrey Tulis and Nicole Mellow have shown, for many of its critics during Ratification the proposed Constitution was infuriatingly imprecise regarding precisely these kinds of questions. Anti-Federalists complained that the responsibilities of the separate branches were not clearly delineated as they ought to be. As Bernard Manin has written, “the Anti-Federalists unremittingly advocated precision and certainty in constitutional matters. They complained over and over again that [the Constitution] was ‘incomprehensible and indefinite,’ ‘vague and inexplicit.’” A free people, they argued, must know which powers their government has and who under that government is to be exercising those powers—questions the Constitution obfuscates.

Rather than rebut this precise charge, sophisticated Federalists conceded the point while insisting that mere “parchment barriers” are insufficient to ensure that the branches of government remain within their separate spheres. Legalistic commandments will, in the long run, fail to withstand the pressure of public opinion and the force of human ambition. For this reason, traditional questions about the nature of authority, the scope of individual liberties, and the precise responsibilities of the government were, for the Constitution’s sophisticated defenders, relatively unimportant for deciding how to design a functional polity—a view that is validated by the absence of a Bill of Rights in the original Constitution.

What questions were regarded as most important? Here too, Tulis and Mellow show that the Constitution is less concerned with defining different types of power than with designing institutions to perform their jobs in democratically desirable ways—Tulis and Mellow call this system “mixed democracy.” These institutional designs are manifested in differing modes of appointment and differing procedures structuring the exercise of authority, none of which conformed to traditional understandings of the separation of powers.

Resources rather than answers; improvisation rather than law

Further, the Constitution does very little to specify what officials are supposed to do with their powers. It does not, for example, try to delineate in advance the substantive difference between a law and a treaty. Instead, the Constitution places the responsibility for drawing those kinds of distinctions in the officeholders who are empowered to make those authoritative decisions through constitutional procedures. If questions of authority arise, the Constitution does not provide direct substantive answers, but rather equips the various interested parties with Constitutional resources that they, in turn, can use to negotiate for their preferred outcome. How far each branch is willing to protract an inter-branch conflict, what they are willing to do to “win,” reflects how important a given dispute is to the branches and serves as an approximation for how that dispute ought to be decided on the merits.

One of the best illustrations of this non-legalistic approach to American constitutionalism is Lincoln’s suspension of habeas corpus during the Civil War. The legal authority to suspend habeas corpus during times of rebellion is in Article I of the Constitution, which suggests that it should be exercised by Congress. However, Lincoln believed that the presidential oath to “preserve, protect, and defend the Constitution” furnished him with a countervailing source of authority. In Lincoln’s view, sometimes called the “life and limb” theory, that source authorized him to suspend habeas corpus during a time of profound crisis before seeking retrospective ratification of that decision from the Congress: “I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the Constitution.” (Congress authorized Lincoln’s previous decision on March 3, 1863.) Later still, after hostilities had ended, the Supreme Court weighed in on the Constitutionality of this arrangement in the case Ex parte Milligan, arguing that “the Constitution, has all the powers granted to it, which are necessary to preserve its existence”—even while finally granting Milligan his habeas corpus writ.

Was Lincoln’s decision “law” when he made it? It is difficult to answer this question without looking at the entire constitutional process as it unfolded in time. As Ben Kleinerman has argued, Lincoln’s decision became constitutional through an improvised process that involved the political judgement of all three of the Constitution’s branches, even if it was not authorized by Congressional statute when he made it.

Permissible vs. legitimate actions under the Constitution

A more recent scenario unfolded during the fall of 2008, when it appeared that several massive financial institutions would soon experience the same fate as Lehman Brothers, which had declared bankruptcy on September 15. In a meeting with Congressional leaders, the Chair of the Federal Reserve Ben Bernanke had stated that a cascading series of bankruptcies could precipitate depression more devastating than the Great Depression of the 1930s. The purpose of that meeting had been to seek Congressional authorization for a $700 billion piece of legislation to shore up the banks—legislation Congress would go on to pass. However, prior to meeting with Congressional leaders, Bernanke and Paulson had considered their unilateral authority under §13(3) of the Federal Reserve Act, which authorizes the Fed to provide an uncapped amount of liquidity to banks and other institutions during “unusual and exigent circumstances.”

Had they decided to act unilaterally, how large of a sum would have exceeded their Constitutional authority? Does the authority granted to the Fed under §13(3) exceed the Constitutional authority that Congress is allowed to delegate to any governmental agency? These questions were clearly on the minds of the Secretary of the Treasury, Hank Paulson, and Bernanke when they pushed to obtain Congressional authorization instead of bailing out financial institutions unilaterally, as they had already done with Bear Sterns and AIG. For Paulson and Bernanke, the sought-for legal boundary—between what was permissible under §13(3) and what would broadly be considered legitimate with Congressional authorization—was opaque, indeed.

A new idea of law

As scenarios like these suggest, confronting the Constitution directly requires us to interrogate our priors about what law is in the first place. If by “law” we mean a binding rule for the community that there is no non-revolutionary appeal from, then the only true source of law is the Constitution itself. Each branch of government participates in lawmaking in different ways and, crucially, possesses an arsenal of Constitutional powers that it can use to fend off encroachments from other branches. Accordingly, there is no precise legal formula for determining in advance what matters should be decided by which branch. Each must use its Constitutional resources to negotiate questions of Constitutional authority as those questions arise.

From this vantagepoint, the idea of law takes on a radical new meaning. The various kinds of law that emanate from the different offices of the Constitution are different ways of regulating the conduct of the community and preserving its security. But they also function as sources of leverage each branch is equipped with as it negotiates its institutional boundaries. For those who view a particular executive order as overreaching or perceive a particular regulation as encroaching on Congress’s turf, the proper response is therefore not to inveigh against presidential or bureaucratic lawlessness, but to ask why Congress has not done more to assert its own Constitutional authority.

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