On presidential executive order number 6
Because the instrument of Executive Order is relatively unfamiliar in Nigeria, in what follows I shall attempt to clarify its constitutional basis and limits and then assess, briefly, whether this particular Order passes muster for constitutional validity. Critics are many, and, even if they be wrong, are doing us great service.
Constant vigilance is the price not only of liberty but also of constitutionalism.
For, as the inimitable Justice Felix Frankfurter, U.S. Supreme Court, observed, “the accretion of dangerous power does not come in a day.
It does come, however slowly, from the generative force of unchecked disregard of restrictions that fence in even the most disinterested assertion of authority.”
In the first section of this essay, I shall situate the instrument of executive orders in the constitutional context of presidential authority and the Separation of Powers.
As the instrument is frequently used in the United States, Section II outlines the American constitutional doctrine.
Section III closely examines the terms of Executive Order No.6, and the final Section, IV, concludes the essay with a definitive consideration of its constitutionality.
I. The separation of powers and presidential authority
Executive Orders are unilateral executive measures that are in essence written presidential instructions to the executive branch.
They are almost unavoidably controversial where they are issued by the President outside a specific statutory mandate authorizing it.
That is because the principle of Separation of Powers is a fundamental tenet of our constitutional order.
Legislative powers of the Federation are specifically vested by the Constitution in the National Assembly.
In the United States, where the constitution vests in Congress “All the legislative powers herein granted” (Article, I, section 1), the Supreme Court has stated that this is the totality of legislative powers.
No one has emphasized this more clearly than Justice Black.
The Constitution, he said, “is neither silent nor equivocal about who shall make laws which the President is to execute. …The Founders of this Nation entrusted the law making power to the Congress alone in both good and bad times.”
In Nigeria, section 4 (1) of the Constitution vests in the National Assembly “The legislative powers of the Federal Republic of Nigeria.” “The” is a definite article.
In English grammar, both “all and “the” belong to a sub-class called determiners used before a noun or a noun phrase to indicate that it is specific or general.
The grammatical context of the two constitutional provisions clearly intends to encompass the totality of legislative powers.
Despite Article I, section 1, Executive Orders are issued frequently by American Presidents. President F.D. Roosevelt issued a record 3,522 during his long presidency.
His uncle, President Theodore Roosevelt as well as Presidents Woodrow Wilson and Calvin Coolidge each issued over a thousand. President Trump, who has been in office for less than two years, has already issued about eighty.
In fact, Executive Orders were the preferred instrument for achieving some of the most important policy changes in the United States, including the Emancipation Proclamation (1863) (Lincoln), racial integration of the U.S. armed forces (1948) (Truman), and the desegregation of public schools (1957) (Eisenhower).
More recently, in 2014, President Obama issued a dozen executive orders directing various agencies in the departments of State, Justice and Homeland Security to refrain from deporting about four million adults illegally present in the United States if they are the parents of children born in the United States or legally present in the country and if they hold a job, complete a high-school diploma (or its equivalent), pay taxes and avoid jail time.
There is scarcely any problem with an Executive Order that is merely a direction by the President that a policy enacted by Congress is executed in the manner prescribed by Congress.
But it becomes problematic, and possibly unconstitutional and invalid, where it amounts instead to a directive that a presidential policy be executed in a manner prescribed by the President.
Sometimes Presidents resort to Executive Orders where they are unable to get the co-operation of Congress to legislate a policy, or where congressional action is slow.
This power is mainly justified by the President’s constitutional mandate to “take care that the laws be faithfully executed” (Article II, Section 3).
But it is not clear if this is sufficient justification.
For, as Justice Holmes said long ago, “The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.” (Myers v.United States, 272 U.S. 52, 177 (1926)).
Therefore, no Executive Order may lawfully be contrary to existing law or the Constitution.
Accordingly, one clear occasion where an Executive Order will be valid is where legislative power over a subject has been donated to the President by the legislature to legislate policy on the subject as long as it does not exceed the powers donated, even though it is not clear, constitutionally, whether the legislature may delegate power carte blanche (Hampton v. United States, 276 U.S. 394, 401 (1928)).
There are, in Nigeria, I submit, two exceptions, whereby the President may lawfully issue Executive Orders contra legem.
The first are measures taken by the President after a Proclamation of a State of Emergency under section 305.
This ends of course where the National Assembly fails to pass a resolution supported by two-thirds of all its members approving the Proclamation (section 305(6)(b)).
(Even with the approval of the National Assembly the exercise of this power has a six-month duration at a time.)
This presidential power came with the Constitution of 1979. Previously, in the Constitution of 1963, the responsibility to proclaim a “period of emergency” was vested in Parliament (Section 70(3)(c)), and not the executive.
The second exception is the President’s capacity as Commander in Chief of the Armed Forces of the Federation (section 130(2)).
This constitutes an independent basis for the President to lawfully issue directives to the armed forces concerning military measures, which may also affect civilians.
It is interesting that President Lincoln justified the Emancipation Proclamation he issued in January 1863, during the Civil War, as a war measure even though it affected the civil status of civilians – Africans held in servitude in the rebellious states (see James Randall, CONSTITUTIONAL PROBLEMS UNDER LINCOLN p. 374).
The Proclamation was three years ahead of the adoption of the Thirteenth Amendment to the U.S. Constitutional that made slavery and involuntary servitude unlawful and unconstitutional in that country.
The President as Commander in Chief has, however, only a limited mandate for Executive Orders.
As Justice Jackson said of the American President in the leading American case, “There are indications that the Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy (Article II, section 2) will constitute him also Commander in Chief of the country, its industries and its inhabitants.” Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579, 644 (1952)).
Neither of these two exceptions, state of emergency powers or commander in chief powers, is relevant to Presidential Executive Order No. 6.
II. The American doctrine
As we have seen, American Presidents frequently resort to issue Executive Orders even though the Constitution vests all legislative powers in the Congress.
The constitutional status of Executive Orders was fully considered by the U.S. Supreme Court in the Youngstown Sheet & Tube Co. (cited above).
On April 8, 1952, to pre-empt an imminent strike by steel workers, President Truman issued Executive Order No. 10340, directing his Secretary of Commerce to take temporary possession of the plants of steel companies involved in a labour dispute.
Congress was immediately notified by the President. The directive was justified principally as a national security measure, as steel was critical to armament production that was needed by the United States military and allied forces engaged in operations in Korea.
Nonetheless, a federal district court issued an injunction in favour of the owners of the steel mills, and the Supreme Court, by a majority, held that the Executive Order was contrary to existing legislation and the Constitution.
One of the majority judges, Jackson, J., offered an insightful analysis of the scope of the President’s powers to lawfully issue Executive Orders.
Justice Jackson began by stating that although separation of powers is enshrined in the Constitution, the fundamental law also diffuses power and “contemplates that practice will integrate the dispersed powers into a workable government.”
According to this perspective, it follows that “Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.”
Justice Jackson then proceeds to identify three discrete categories of practical situations with different legal consequences for the President’s power relative to that of Congress.
These are: where an Executive Order is mandated by the legislature; where it is based on independent presidential power; and where it is contrary to the will of the legislature, respectively.
In his word (pp. 635-36, emphasis supplied),“(First,) When the president acts pursuant to an express or implied authorization of congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.
In these circumstances, and in these only, may he be said (for what it may be worth), to personify the federal sovereignty.
If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power.
A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
(Second,) 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 twilight in which he and Congress may have concurrent authority, or which its distribution is uncertain.
Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invites, 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 abstract theories of law.
(Third,) 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.”
Ukhuegbe is a legal practitioner with Solomon Ukhuegbe & Associates, Benin.
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