The powers of the President include the issuance of Proclamations and Executive Orders. Executive Orders can delegate authority vested in the President by the Constitution or by statute. The Executive Order can also put a policy gloss on the President’s implementation of his/her authority and as such can be important in understanding how the President interprets his/her authority. In a famous case, Youngstown Sheet and Tube v. Sawyer (US) President Truman’s effort to seize the steel mills where workers were on strike during the Korean War determined that the President lacked such authority and that the Executive Order issued was not authorized by any statute. SCOTUS ruling in that case had each of the nine Justices of SCOTUS rendering a separate opinion, either concurring or dissenting from the Opinion of the Court and analyzing Presidential power.
Thus, a land mark case including Justice Jackson opining that the President of the United States had very limited implied power to conduct the nation’s business.
I have decided to pick out the key Executive Orders issued by President Obama for each year so far.
For 2009 I pick E.O. 13527 signed December 20, 2009, and published in the Federal Register at 75 FED. REG. pp 737-38. E.O. 13527 is entitled “Establishing Federal Capability for the Timely Provision of Medical Countermeasures Following Biological Attacks”! The order has implications for Pandemic Flu and other disease outbreaks also IMO.
The key mandate of the E.O. reads as follows:
“Sec. 4. Federal Rapid Response.
(a) The Federal Government must develop
the capacity to anticipate and immediately supplement the capabilities of
affected jurisdictions to rapidly distribute medical countermeasures following
a biological attack. Implementation of a Federal strategy to rapidly dispense
medical countermeasures requires establishment of a Federal rapid response
(b) The Secretaries of Homeland Security and Health and Human Services,
in coordination with the Secretary of Defense, within 90 days of the date
of this order, shall develop a concept of operations and establish requirements
for a Federal rapid response to dispense medical countermeasures to an
affected population following a large-scale biological attack.”
I am not sure what document, plan, or concept paper has been issued to meet this mandate but there are several candidates.
For CY 2010 I pick E.O. 13528 of January 11, 2010 published at 75 FED. REG. pp 2053-54 on Thursday January 14, 2010. This Executive Order is entitled “Establishment of the Council of Governors” and is designed to address a contretemps between the military federal establishment and Governors that was presaged by events in Hurricane Katrina.
The key provision of the order is the jurisdiction granted to the members of the council to provide:
“Such views, information,or advice shall concern:
(a) matters involving the National Guard of the various States;
(b) homeland defense;
(c) civil support;
(d) synchronization and integration of State and Federal military activities
in the United States; and
(e) other matters of mutual interest pertaining to National Guard, homeland
defense, and civil support activities.”
The best analysis of the this groups outcome is not definitively available to me but an article in a recent issue of the Homeland Security Journal published by the Naval Post-grad school at Monterrey indicates that the so-called dual authorization and command responsibility apparently yet to be tested in a real world crisis is in fact part of the Council’s doing. If so this would be an extremely significant concept both for federal and STATE and their local governments crisis management and joint operations.
So far given the few orders issued this CY by the President I prefer to defer my Executive Order pick to later on in the year. But so far see: