1. Write your journal
2. Read and complete the following questions. Questions are at the very end
Ordinance Power- Power of the President to issue executive orders; originates from the Constitution and acts of Congress.
PRESIDENTIAL ORDINANCE-MAKING POWER
As a means of carrying out constitutional and statutory duties, Presidents issue regulations, proclamations, and EXECUTIVE ORDERS. Although this exercise of legislative power by the President appears to contradict the doctrine of SEPARATION OF POWERS, the scope of administrative legislation has remained broad. Rules and regulations, as the Supreme Court noted in United States v. Eliason (1842), "must be received as the acts of the executive, and as such, be binding upon all within the sphere of his legal and constitutional authority."
Proclamations are a second instrument of administrative legislation. Sometimes they are hortatory in character, without legislative effect, such as proclamations for Law Day. Other proclamations have substantive effects, especially when used to regulate international trade on the basis of broad grants of statutory authority. Still other proclamations have been issued solely on the President's constitutional authority, as with pardons and AMNESTIES and ABRAHAM LINCOLN'S proclamations in April 1861. When a statute prescribes a specific procedure in an area reserved to Congress and the President follows a different course, proclamations are illegal and void.
From ancient times a proclamation was literally a public notice, whether by trumpet, voice, print, or posting. Yet in 1873 the Supreme Court in Lapeyre v. United States declared that a proclamation by the President became a valid instrument of federal law from the moment it was signed and deposited in the office of the secretary of state, even though not published. These early proclamations eventually found their way into the Statutes at Large, but not until the Federal Register Act of 1935 did Congress require the prompt publication of all proclamations and executive orders that have general applicability and legal effect.
Executive Orders- Directive, rule, or regulation issued by a chief executive or subordinates, based upon constitutional or statutory authority and having the force of the law.
What is an Executive Order?
Executive Orders (EOs) are legally binding orders given by the President, acting as the head of the Executive Branch, to Federal Administrative Agencies. Executive Orders are generally used to direct federal agencies and officials in their execution of congressionally established laws or policies. However, in many instances they have been used to guide agencies in directions contrary to congressional intent.
A Brief History and Examples
Executive Orders have been used by every chief executive since the time of George Washington. Most of these directives were unpublished and were only seen by the agencies involved. In the early 1900s, the State Department began numbering them; there are now over 13,000 numbered orders. Orders were retroactively numbered going back to 1862 when President Lincoln suspended the writ of habeas corpus and issued the Emancipation Proclamation by Executive Order. There are also many other Executive Orders that have not been numbered because they have been lost due to bad record-keeping. Such is not the problem today. All new Executive Orders are easily accessible
Many important policy changes have occurred through Executive Orders. Harry Truman integrated the armed forces under Executive Order. President Eisenhower used an EO to desegregate schools. Presidents Kennedy and Johnson used them to bar racial discrimination in federal housing, hiring, and contracting. President Reagan used an EO to bar the use of federal funds for advocating abortion. President Clinton reversed this order when he came into office.
President Clinton has come under fire for using the EO as a way to make policy without consulting the Republican Congress. Clinton has signed over 300 EOs since 1992. In one case, he designated 1.7 million acres of Southern Utah as the Grant Staircase - Escalante National Monument. He also designated a system of American Heritage Rivers and even fought a war with Yugoslavia under Executive Order.
Executive Agreement- A pact made by the President directly with the head of a foreign state; a binding international agreement with the force of law but which (unlike a treaty) does not require Senate consent.
EXECUTIVE AGREEMENTS
EXECUTIVE AGREEMENTS, a term signifying international agreements concluded by the president, as distinguished from treaties, which can be ratified by the president only with consent of the Senate. In international usage they are often called "treaties in simplified form," whether embodied in one text or in an exchange of notes. Executive agreements are as effective as formal treaties in conferring rights and obligations under international law. The Constitution mentions them obliquely as "agreements" or "compacts," without specifying limitations as to procedure, form, or substance. Early suppositions that they bind only the administration that concludes them, or that their use must be confined to routine matters, have been negated by practice. Although executive agreements are usually administrative agreements that implement policies already determined, there are many that have determined significant policies—for example, the Rush-Bagot Agreement (1817) limiting armament on the Great Lakes; the exchange of notes enunciating the Open Door policy in China (1899, 1900); the Boxer Protocol (1901); the Gentlemen's Agreement (1907) on Japanese immigration; the Lansing-Ishii Agreement (1917) on Japanese interests in China; the armistices after the Revolution, the Spanish-American War, and the two world wars; the Atlantic Charter (1941); and the Moscow, Teheran, YALTA, and POTSDAM agreements during World War II (1943, 1945).
There are numerous examples of executive agreements established by the President. Famous historic examples include the mutual protection deal struck with the United Kingdom at the onset of World War II, the postwar agreements with the Soviet Union at Yalta and Potsdam in 1945 and the peace treaty established with Vietnam in the early 1970s. Modern examples include the North American Free Trade Agreement from 1994 and membership in the World Trade Organization. These were all brokered by executive agreement with no oversight by the legislative branch.
Treaty- A formal agreement between two or more sovereign states.
Ratification and Implementation of U.S. Treaties and Agreements
When conducting U.S. treaty research, it is important to understand the ratification and implementation process. Negotiation of treaties and international agreements is the responsibility of the Executive Branch. The U.S. Department of State provides the Foreign Service with detailed instructions for the negotiation and conclusion of treaties and international agreements. These instructions are part of the Foreign Affairs Manual, Circular 175.4 Circular 175 summarizes the constitutional requirements for determining whether an international agreement should be considered a treaty or an agreement. It outlines the general procedures for negotiation, signature, publication, and registration of treaties and international agreements.
1. Outline of the Treaty Making Process:
Secretary of State authorizes negotiation
U.S. representative negotiate
Agree on terms, and upon authorization of Secretary of State, sign treaty
President submits treaty to Senate
Senate Foreign Relations Committee considers treaty and reports to Senate
Senate considers and approves by 2/3 majority
President proclaims entry into force
2. 6. 2000-current
2000 - Patent Law Treaty (PLT) - (not ratified by U.S.)
2001 - Convention on Cybercrime - a highly controversial proposal (U.S. Senate ratified August 2006 [4] )
2002 - SORT (Strategic Offensive Reductions Treaty) AKA Moscow Treaty - limits the nuclear arsenals of Russia and the U.S.
2004 - International Treaty on Plant Genetic Resources for Food and Agriculture AKA "International Seed Treaty" - to assure farmers' access to seeds of the world's food security crops (not ratified by U.S.)
2005 - Kyoto Protocol - climate change (not ratified by U.S.)
2005 - Dominican Republic-Central America Free Trade Agreement
Questions:
Ordinance Power:
1. Where do the ordinance powers originate?
2. In order to carry out constitutional and statutory duties, what do Presidents issue?
3. What are proclamations?
4. What is an example of a proclamation?
Executive Orders:
1. Who gives executive orders?
2. What are executive orders generally used for?
3. What did Harry Truman change with an executive order?
4. What did Ronald Reagan change with an executive order?
Executive Agreements:
1. Does an executive agreement need Senate consent?
2. Who negotiates an executive agreement?
3. What is an example of an executive agreement before World War II?
4. What is an example of an executive agreement after World War II?
Treaties:
1. What is a treaty?
2. What branch of government is responsible for the negotiations of a treaty?
3. What House of Congress must approve a treaty?
4. What treaties have not been ratified by the United States in the 2000’s?
