Okay, Here's The Actual Issue With Executive Orders We Must Solve:

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"Okay, Here's The Actual Issue With Executive Orders We Must Solve:"
Malashaan
Guest Contributor

The debate for the recent referendum regarding executive order scope focused heavily on Executive Order 97 and framed the issue as whether certain powers should be taken away from the executive branch. However, this obscured the fundamental underlying issue that we must resolve one way or another: regardless of what we decide the powers of executive orders are, it is currently unclear and need to make a change one way or another.

When I initially raised the topic, I hoped to address the uncertainty surrounding the current law. This is a problem I have raised periodically for several years, but is yet to be resolved.

As a starting point, we must evaluate what the current law is. There are two competing interpretations, and both have their merits. One says that executive orders are on a par with bills that go through the traditional legislative process. This is the commonly accepted view that allows for Executive Orders to amend other legislation. The other interpretation is that Executive Orders are only valid to the extent they supplement, rather than contradict, other legislation. In this view, the vetoed bill is substantially the same as what the law already is. So which is the correct interpretation? And why does it matter?

To answer the first question, it’s helpful to start with a little history. Constitution IV was the supreme law of the region from February 2010 until March 2012. Under that Constitution, the President and Vice President could both “issue, amend, or repeal laws or existing Executive Orders, or amend the Constitution.” As HEM excellently summarized in the debate period, that language reflects our history of growing out of a monarchy. If that language were still in place, there would be no question that Executive Orders can amend statutory law. But that language is not still in place.

In the early stages of working on Constitution V, there were two competing versions drafted by Swakistek and Oliver. Swakistek’s version maintained similar language to Constitution IV regarding Executive Orders, but the Senate ultimately took Oliver’s approach. Oliver’s version adopted the current language that merely gives Executive Orders “the force of law.” In fact, during the debate, I raised the prospect that this language appears to weaken Executive Orders relative to their Constitution IV counterparts. HEM responded at the time that he did not believe Executive Orders were weakened by the new language, but unfortunately, no further discussion occurred on that point. And there are good reasons to conclude that Executive Orders are indeed limited under the current language to only subject matter that does not contradict statutory law.

As a threshold matter, one of the tenets of statutory construction is that a change in wording is indicative of a change of meaning. The general idea is that a legislative body will not make substantial changes to a law unless it is trying to either change the meaning or address a specific problem with the existing language. In this case, the Senate did not just change the language, they chose language that has well-established meaning in the real-life US legal system. An Executive Order in the US system of government is defined as “A declaration by the president or a governor which has the force of law, usually based on existing statutory powers, and requiring no action by the Congress or state legislature” (see, e.g., here). Furthermore, it is well established in American jurisprudence that such executive orders cannot contradict or amend statutes. In other words, when Constitution V was drafted, the Senate elected to change the existing language and replace it with language with a well-defined meaning in real-world law. In sum, the fact that the executive order language changed between Constitutions is legal evidence that the law changed, and the choice to use a term with an established legal definition in real life is legal evidence that the executive order power is more limited now.

On the other hand, there are arguments that the scope of Executive Orders remained unchanged between Constitutions IV and V. One can argue that “force of law” is just a convenient phrase and that it does not adopt its real-life meaning. Europeia is an independent legal system, and we are not required to adopt real-life definitions. In fact, the Judiciary Act defines Nolo Contendre in a way that directly contradicts that term’s real-life usage. However, absent an express intent in the statute or any other indication of an intended meaning, it’s hard to justify creating our own definition of a term with existing real-life meaning.

There is also a long history of customary law in Europeia. The Court has explained that where a practice has been consistent, general, and applied for a sufficient time with the belief that it is legally binding, it can become legally binding. The Court has long upheld the validity of that doctrine in multiple decisions since. The argument here would be that because there has been a common belief that Executive Orders can amend statutes, that belief has now become law as a custom. However, customary law is a bad fit for statutory interpretation questions. It essentially boils down to “because we got away with violating the law for some time before we were challenged, the law has now changed.” That is not how a legal system should work. Customary law is a much better fit for adopted practices. For example, if elections are always held on Fridays to the extent that people just assume that elections will always be on Fridays, that practice may become binding even though the statute is silent on the matter.

While I have probably made it clear above, I think the more limited interpretation of Executive Order scope is the correct one, that is not ultimately what matters. The fundamental issue is that, whether I am right or wrong, there are legally valid reasons that the Court might go either way if this question was before them in a live case. The Court has certainly issued advisory opinions that suggest Executive Orders can amend statutes, but those are not binding and are typically premised on earlier Advisory Opinions that were based on Constitution IV. The question of the effect of the change in language between Constitutions IV and V has never been addressed by the Court.

This presents a potential problem that can and should be avoided. Any use of an Executive Order to amend a statute currently has a legal cloud over it. The resulting change could be the subject of a lawsuit at any time in future, possibly years after the executive order was issued. If the Court rules that the Executive Order was invalid, the knock-on effects could be huge. For example, if the challenged Executive Order changed our election law, it would call into question every election held under the changed law, which could, in turn, taint anything done by the officials elected.

Turning back to the vetoed legislation, we should not frame it as whether to take power away from the executive. It’s very possible that the executive already does not have that power. The question we should be answering as a region is what we want the scope of Executive Orders to be, and then we can turn to language that unambiguously achieves that. I personally favor the American model of executive order power. While I understand the desire of others to have a stronger executive to serve as a backstop if the need for a quick change in the law is needed, I think the better solution is to draft laws that give the Executive sufficient discretion to address emergencies within the existing law, rather than allow the Executive to change the law itself. That is a policy discussion we should be having, and we certainly will not all agree on, but we should all be uneasy with a status quo in which the current state of the law is ambiguous.

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Interesting post, always nice to hear the thoughts of someone not calling people supporters of Dictatorships...
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I definitely agree with much of what you said here, and I think there's lots of ways to solve the issue(s?) going forward!
 
I swear to god, the next person who says I called people supporters of Dictatorships will actually get called something.

I called the power dictatorial. Whether the supporters are actually supporters of Dictatorships would seem to rest on whether they want the full power of EOs used or not. I believe they dont. I just think they dont want the full power of EOs used but also not limited for reasons I can not wrap my head around. Now, if you actually support the use of the full power of Executive Orders, Aex, then yes, you would seem to be a supporter of Dictatorships.

There. Now you can claim that I called you (and literally no one else) a potential supporter of Dictatorships.
 
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