Executive orders발음듣기
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Executive orders
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출처 : 칸아카데미
Executive orders
[Instructor] What we're going to discuss in this video is executive orders and these are directives being issued by the President of the United States that can have the force of law.
And I know what you're thinking.
Isn't Congress our legislative body the body that actually creates the laws and isn't the job of the president to be the head of the executive branch to execute on those laws?
And if you are thinking that you are correct.
But going all the way back to George Washington presidents have issued executive orders.
Some are fairly lightweight.
They might be a directive for something to be done in a certain way or a small regulation or even appointing someone to a job.
But sometimes these executive orders can be quite significant.
And the constitutional justification for these orders come mainly from two different statements in Article II of the U.S. Constitution.
In Section 1, it starts off saying, "The executive power shall be vested in a President of the United States of America,"
And at the end of Section 3 it says that the president shall take care that the laws be faithfully executed.
And so the clearest justification for an executive order are times when a regulation is needed or a directive is needed in order to faithfully execute the laws.
But as we will see presidents throughout history have really pushed the boundary here and have definitely gone into territory that you might expect to be the area of Congress.
Now in terms of appreciating how frequent these executive orders are here is a chart that gives the average executive orders per year for the last few presidents.
And you can see at the low end you have President Obama and President George W. Bush averaging about 35 or 36 executive orders per year.
And then all the way at the high end you get to Gerald Ford and Jimmy Carter.
Now if you were to go even further back in history presidents like Franklin Roosevelt had far more executive orders than even this.
And just to appreciate some of the most significant executive orders ever made Lincoln's Emancipation Proclamation in 1863 which was delivered during the Civil War it freed nearly three million slaves in the Confederate states.
In 1942, a few months after Japan's bombardment of Pearl Harbor Franklin Roosevelt issues executive order 9066 which called for the interment of Americans of Japanese ancestry.
Historians have really frowned on this executive order because it was a blatant disregard for the rights of these Americans.
But at the time Franklin Roosevelt justified it as a national security issue.
And then in 1952 during the Korean War steel workers are threatening to go on strike.
And so President Truman issues executive order 10340 that puts steel mills under the control of the Commerce Secretary.
And the justification here was that they were in the middle of the war and that steel is an essential material for conducting the war.
Now what's really interesting about this executive order is that the owners of the steel mills did not like this and they take the government to federal court.
It eventually gets to the U.S. Supreme Court.
It's known as the case Youngstown Sheet and Tube Company v. Sawyer where Sawyer was the Commerce Secretary and the Supreme Court rules against President Truman saying that this executive order went beyond the bounds of even the president's implied powers.
And today, legal scholars look to the concurring opinion of Justice Jackson in that case on thinking about whether an executive order is constitutional or not.
And so this is part of Justice Jackson's concurring opinion where he goes into the various cases on executive authority.
So there's the first case.
When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum.
In these circumstances, and in these only, may he be said, for what it may be worth, to personify the federal sovereignty.
So what he's saying here is the president has the most authority when he's acting on behalf of congressional authorization.
The second case that Justice Jackson talks about is "when the president acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.
Therefore, congressional inertia, indifference, or quiescence may sometimes, at least, as a practical matter, so this is a very pragmatic case right over here, enable, if not invite, measures on independent presidential responsibility.
In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.
So this second case is an interesting one.
Here, Justice Jackson says, look.
There are situations where Congress hasn't passed a law here and maybe there's some inertia they're indifferent about it.
And there could be a scenario where the president really does need to make some directive faster than Congress can get to it.
In this scenario it also might be okay for the president to make an executive order.
Now the third case that Justice Jackson talks about is "when the president takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."
Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
And so here Justice Jackson is saying this third case is really dangerous.
In Justice Jackson's opinion this first case did not apply in Youngstown Sheet and Tube Company v. Sawyer because President Truman was not acting on behalf of Congress.
Justice Jackson also doesn't think the second case applies because Congress has talked about situations in which the executive might seize private property.
Congress has talked about scenarios where a factory is supplying the federal government but they're unable to comply with federal orders.
Congress also talks about scenarios where the executive is trying to protect the interests of the general economy.
But these scenarios do not apply here and so Justice Jackson considers it this third scenario where you have to be very careful and this is why they declared Truman's executive order seizing the private steel mills to be unconstitutional.
So as you can imagine this implied power of executive orders is a major gray area in our republic.
Strict readings of the Constitution would make many executive orders hard to justify.
But as you can see the justices have been fairly pragmatic on the issue especially when you look at this case two right over here that if there's a scenario where Congress has not ruled on it or they're being indifferent or there's inertia and there's some special scenario it might be okay for the president to make directives that have the rule of law.
In future videos, we will talk more about these especially the informal powers.
번역
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[Instructor] What we're going to discuss in this video is executive orders and these are directives being issued by the President of the United States that can have the force of law.발음듣기
대기중
Isn't Congress our legislative body the body that actually creates the laws and isn't the job of the president to be the head of the executive branch to execute on those laws?발음듣기
대기중
They might be a directive for something to be done in a certain way or a small regulation or even appointing someone to a job.발음듣기
대기중
And the constitutional justification for these orders come mainly from two different statements in Article II of the U.S. Constitution.발음듣기
대기중
In Section 1, it starts off saying, "The executive power shall be vested in a President of the United States of America,"발음듣기
대기중
And at the end of Section 3 it says that the president shall take care that the laws be faithfully executed.발음듣기
대기중
And so the clearest justification for an executive order are times when a regulation is needed or a directive is needed in order to faithfully execute the laws.발음듣기
대기중
But as we will see presidents throughout history have really pushed the boundary here and have definitely gone into territory that you might expect to be the area of Congress.발음듣기
대기중
Now in terms of appreciating how frequent these executive orders are here is a chart that gives the average executive orders per year for the last few presidents.발음듣기
대기중
And you can see at the low end you have President Obama and President George W. Bush averaging about 35 or 36 executive orders per year.발음듣기
대기중
Now if you were to go even further back in history presidents like Franklin Roosevelt had far more executive orders than even this.발음듣기
대기중
And just to appreciate some of the most significant executive orders ever made Lincoln's Emancipation Proclamation in 1863 which was delivered during the Civil War it freed nearly three million slaves in the Confederate states.발음듣기
대기중
In 1942, a few months after Japan's bombardment of Pearl Harbor Franklin Roosevelt issues executive order 9066 which called for the interment of Americans of Japanese ancestry.발음듣기
대기중
Historians have really frowned on this executive order because it was a blatant disregard for the rights of these Americans.발음듣기
대기중
And so President Truman issues executive order 10340 that puts steel mills under the control of the Commerce Secretary.발음듣기
대기중
And the justification here was that they were in the middle of the war and that steel is an essential material for conducting the war.발음듣기
대기중
Now what's really interesting about this executive order is that the owners of the steel mills did not like this and they take the government to federal court.발음듣기
대기중
It's known as the case Youngstown Sheet and Tube Company v. Sawyer where Sawyer was the Commerce Secretary and the Supreme Court rules against President Truman saying that this executive order went beyond the bounds of even the president's implied powers.발음듣기
대기중
And today, legal scholars look to the concurring opinion of Justice Jackson in that case on thinking about whether an executive order is constitutional or not.발음듣기
대기중
And so this is part of Justice Jackson's concurring opinion where he goes into the various cases on executive authority.발음듣기
대기중
When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum.발음듣기
대기중
In these circumstances, and in these only, may he be said, for what it may be worth, to personify the federal sovereignty.발음듣기
대기중
So what he's saying here is the president has the most authority when he's acting on behalf of congressional authorization.발음듣기
대기중
The second case that Justice Jackson talks about is "when the president acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.발음듣기
대기중
Therefore, congressional inertia, indifference, or quiescence may sometimes, at least, as a practical matter, so this is a very pragmatic case right over here, enable, if not invite, measures on independent presidential responsibility.발음듣기
대기중
In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.발음듣기
대기중
There are situations where Congress hasn't passed a law here and maybe there's some inertia they're indifferent about it.발음듣기
대기중
And there could be a scenario where the president really does need to make some directive faster than Congress can get to it.발음듣기
대기중
Now the third case that Justice Jackson talks about is "when the president takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."발음듣기
대기중
Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.발음듣기
대기중
In Justice Jackson's opinion this first case did not apply in Youngstown Sheet and Tube Company v. Sawyer because President Truman was not acting on behalf of Congress.발음듣기
대기중
Justice Jackson also doesn't think the second case applies because Congress has talked about situations in which the executive might seize private property.발음듣기
대기중
Congress has talked about scenarios where a factory is supplying the federal government but they're unable to comply with federal orders.발음듣기
대기중
Congress also talks about scenarios where the executive is trying to protect the interests of the general economy.발음듣기
대기중
But these scenarios do not apply here and so Justice Jackson considers it this third scenario where you have to be very careful and this is why they declared Truman's executive order seizing the private steel mills to be unconstitutional.발음듣기
대기중
So as you can imagine this implied power of executive orders is a major gray area in our republic.발음듣기
대기중
But as you can see the justices have been fairly pragmatic on the issue especially when you look at this case two right over here that if there's a scenario where Congress has not ruled on it or they're being indifferent or there's inertia and there's some special scenario it might be okay for the president to make directives that have the rule of law.발음듣기
대기중
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