Hearing of the
Subcommittee on Legislative and Budget Process
The Impact of Executive Orders on the Legislative Process: Executive Lawmaking?
THANK YOU, CHAIRMAN GOSS, FOR INVITING MY SUBMISSION ON THE IMPORTANT SUBJECT OF THE IMPACT OF EXECUTIVE ORDERS ON THE LEGISLATIVE PROCESS. THE SPECIFIC QUESTIONS I WILL ADDRESS ARE THE ROLE OF EXECUTIVE ORDERS WITHIN OUR CONSTITUTIONAL SYSTEM, AND THE TOOLS AVAILABLE FOR CONGRESS TO RESPOND TO EXECUTIVE ORDERS.
I. EXECUTIVE ORDERS
AS AN INITIAL MATTER, IT IS IMPORTANT TO RECOGNIZE THAT THE PRESIDENT HAS BROAD AUTHORITY TO ISSUE EXECUTIVE ORDERS, TO GUIDE AND CONTROL THE FUNCTIONING OF THE EXECUTIVE BRANCH. AS THE SUPREME COURT RECOGNIZED IN THE STEEL SEIZURE CASE, YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343 U.S. 579, 585 (1952), THE PRESIDENT'S EXECUTIVE ORDER AUTHORITY HAS TWO POTENTIAL SOURCES: THE CONSTITUTION, AND FEDERAL STATUTES.
ALTHOUGH EXECUTIVE ORDERS ARE NOT EXPLICITLY MENTIONED IN THE CONSTITUTION, THE AUTHORITY TO DIRECT THE EXECUTIVE BRANCH IS INHERENT IN THE PRESIDENT'S CONSTITUTIONAL ROLE AS THE HEAD OF A UNITARY EXECUTIVE BRANCH. THAT AUTHORITY IS ALSO A NECESSARY PART OF THE PRESIDENT'S POWER TO PERFORM HIS CONSTITUTIONAL DUTY TO "TAKE CARE THAT THE LAWS BE FAITHFULLY EXECUTED." ARTICLE II, SECTION 3.
SOME EXECUTIVE ORDERS MAY ALSO BE ROOTED IN OTHER CLAUSES OF THE CONSTITUTION, SUCH AS THE APPOINTMENTS CLAUSE AND THE COMMANDER-IN-CHIEF CLAUSE. PRESIDENT TRUMAN BASED EXECUTIVE ORDER 9981, ORDERING THE DESEGREGATION OF THE ARMED FORCES, ON HIS COMMANDER-IN-CHIEF POWERS. CONGRESS ITSELF OFTEN GRANTS THE PRESIDENT ADDITIONAL AUTHORITY TO ISSUE EXECUTIVE ORDERS, EITHER EXPRESSLY OR BY GRANTING HIM SIGNIFICANT DISCRETION IN EXECUTING THE LAWS. WHEN CONGRESS GRANTS THE PRESIDENT SUBSTANTIAL DISCRETION, EXECUTIVE ORDERS PROVIDE AN APPROPRIATE MECHANISM FOR THE PRESIDENT TO INFORM HIS SUBORDINATES WITHIN THE EXECUTIVE BRANCH AS TO THE WAY IN WHICH THAT DISCRETION IS TO BE EXERCISED.
FOR EXAMPLE, 22 U.S.C. § 287c EXPLICITLY CONTEMPLATES THAT THE PRESIDENT WILL ISSUE EXECUTIVE ORDERS TO GIVE EFFECT TO UNITED NATIONS SECURITY COUNCIL RESOLUTIONS. IT IS A VERY GENEROUS GRANT OF DISCRETION, AND AUTHORIZES THE PRESIDENT, AMONG OTHER THINGS, TO "INVESTIGATE, REGULATE, OR PROHIBIT, IN WHOLE OR IN PART, ECONOMIC RELATIONS OR RAIL, SEA, AIR, POSTAL, TELEGRAPHIC, RADIO, AND OTHER MEANS OF COMMUNICATION BETWEEN ANY FOREIGN COUNTRY OR ANY NATIONAL THEREOF OR ANY PERSON THEREIN AND THE UNITED STATES . . . ." 22 U.S.C. § 287c(a).
SIMILARLY, 40 U.S.C. § 471 ET SEQ., THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT, SPECIFICALLY AUTHORIZES THE PRESIDENT TO ISSUE POLICIES AND DIRECTIVES "AS HE SHALL DEEM NECESSARY TO EFFECTUATE THE PROVISIONS" OF THE ACT. 40 U.S.C. § 486. THE ACT'S GENERAL PURPOSE OF FURTHERING THE "ECONOMIC AND EFFICIENT" PERFORMANCE OF THE FEDERAL GOVERNMENT'S PROCUREMENT FUNCTIONS MAY PLAUSIBLY SUPPORT A WIDE RANGE OF PRESIDENTIAL POLICIES. AND AS AN HISTORICAL MATTER, PRESIDENTS HAVE FREQUENTLY RELIED ON THE ACT TO JUSTIFY EXECUTIVE ORDERS.
THE PRESIDENT, IN ISSUING AN EXECUTIVE ORDER BASED ON A STATUTE, IS ENGAGING IN A PROCESS SIMILAR TO ADMINISTRATIVE RULEMAKING: BOTH PROCESSES REQUIRE AND PERMIT EXECUTIVE BRANCH OFFICIALS TO EXERCISE DISCRETION WITHIN THE STATUTORY FRAMEWORK CREATED BY CONGRESS. THE CONCEPT OF "CHEVRON DEFERENCE" TO RULEMAKING BY CABINET DEPARTMENTS IS A FAMILIAR ONE. BUT IT IS ALSO AN ACKNOWLEDGMENT OF PRESIDENTIAL DISCRETION IN THE INTERPRETATION OF VERY MANY STATUTES. ALTHOUGH RULEMAKING DIFFERS FROM EXECUTIVE ORDERS IN MANY WAYS -- CHIEFLY BY BEING SUBJECT TO THE PROCEDURAL REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT -- THE CONCEPT OF EXECUTIVE BRANCH DISCRETION THAT IS UNCONTROVERSIAL IN THE RULEMAKING SETTING SHOULD NOT BE DRAMATICALLY MORE CONTROVERSIAL IN THE HIGHLY SIMILAR CONTEXT OF EXECUTIVE ORDERS. WHETHER THE PRESIDENT IS RELYING ON HIS CONSTITUTIONAL POWERS OR ON STATUTORY AUTHORITY, IT IS VITALLY IMPORTANT TO THE NATION THAT THE EXECUTIVE POWER BE EXERCISED FORCEFULLY AND CONSISTENTLY, AND THAT THE CHIEF EXECUTIVE'S LAWFUL POLICY PREFERENCES BE CARRIED OUT BY HIS SUBORDINATES WITHIN THE EXECUTIVE BRANCH. EXECUTIVE ORDERS ARE BINDING ON OFFICIALS WITHIN THE EXECUTIVE BRANCH.
PRESIDENTS HAVE EXERCISED THEIR AUTHORITY TO ISSUE EXECUTIVE ORDERS THROUGHOUT OUR HISTORY. PRESIDENT WASHINGTON, FOR EXAMPLE, ISSUED DIRECTIVES THAT TODAY WOULD BE CLASSIFIED AS EXECUTIVE ORDERS, USING THEM TO MANAGE THE BUSINESS OF THE EXECUTIVE BRANCH IN SUCH AREAS AS PROSECUTORIAL PRIORITIES, AND HARMONIZING THE PUBLIC POSITIONS OF THE CABINET DEPARTMENTS. SUBSEQUENT PRESIDENTS, INCLUDING PRESIDENT ADAMS AND PRESIDENT JEFFERSON, FOLLOWED SUIT. BY TRADITION, THE DISTINCTION OF ISSUING EXECUTIVE ORDER NUMBER ONE IS AWARDED TO PRESIDENT LINCOLN, ALTHOUGH IN FACT THE PRACTICE OF NUMBERING EXECUTIVE ORDERS DID NOT ARISE UNTIL THIS CENTURY.
THE HISTORICAL PRACTICE IS SIGNIFICANT IN THIS INSTANCE BECAUSE IT GIVES CONTENT TO "THE EXECUTIVE POWER" GRANTED TO THE PRESIDENT BY THE CONSTITUTION. AS JUSTICE FRANKFURTER STATED IN HIS CONCURRENCE IN THE STEEL SEIZURE CASE, "A SYSTEMATIC, UNBROKEN, EXECUTIVE PRACTICE, LONG PURSUED TO THE KNOWLEDGE OF THE CONGRESS AND NEVER BEFORE QUESTIONED, ENGAGED IN BY PRESIDENTS WHO HAVE ALSO SWORN TO UPHOLD THE CONSTITUTION . . . MAY BE TREATED AS A GLOSS ON 'EXECUTIVE POWER' VESTED IN THE PRESIDENT BY § 1 OF ART. II." 343 U.S. AT 610-11 (FRANKFURTER, J., CONCURRING).
BROAD AS THE PRESIDENT'S POWERS ARE, THEY ARE PLAINLY NOT UNLIMITED. THEY ARE LIMITED BY THE CONSTITUTION'S TEXT; THEY ARE LIMITED BY THE PRINCIPLE OF SEPARATION OF POWERS EMBODIED IN THE CONSTITUTION; THEY ARE LIMITED BY THE NON-DELEGATION DOCTRINE; AND THEY ARE OFTEN LIMITED BY STATUTORY TERMS THAT GRANT THE PRESIDENT ONLY A NARROW DISCRETION.
IN RECENT DECADES, PRESIDENTS HAVE RELIED ON THE ATTORNEY GENERAL TO REVIEW AND APPROVE PROPOSED EXECUTIVE ORDERS. EXECUTIVE ORDER 11,030, ISSUED IN 1962 AND WHICH CONTINUES (AS AMENDED) TO GOVERN THE FORM OF EXECUTIVE ORDERS AND THE PROCEDURES TO BE FOLLOWED IN ISSUING EXECUTIVE ORDERS, PROVIDES THAT THE ATTORNEY GENERAL IS TO REVIEW PROPOSED EXECUTIVE ORDERS FOR "FORM AND LEGALITY."
THE ATTORNEY GENERAL STILL PERFORMS THAT FUNCTION IN CERTAIN EXCEPTIONAL CASES: ATTORNEY GENERAL CIVILETTI, FOR EXAMPLE CHOSE TO APPROVE PRESIDENT CARTER'S EXECUTIVE ORDERS FOR DEALING WITH THE IRANIAN HOSTAGE CRISIS IN AN OPINION OVER HIS OWN SIGNATURE. 4A OP. OFF. L. C. 302 (1981). BUT THE ATTORNEY GENERAL HAS FORMALLY DELEGATED THE RESPONSIBILITY TO APPROVE EXECUTIVE ORDERS TO THE JUSTICE DEPARTMENT'S OFFICE OF LEGAL COUNSEL ("OLC"), IN WHICH I WAS PRIVILEGED TO SERVE DURING THE ADMINISTRATIONS OF PRESIDENT REAGAN AND PRESIDENT BUSH.
THE TERMS OF THAT DELEGATION, IN 28 CFR § 0.25, ARE THEMSELVES INSTRUCTIVE. OLC IS RESPONSIBLE NOT ONLY FOR REVIEWING PROPOSED EXECUTIVE ORDERS FOR "FORM AND LEGALITY," BUT ALSO FOR "MAKING NECESSARY REVISIONS" TO PROPOSED ORDERS BEFORE "THEIR TRANSMISSION TO THE PRESIDENT." FURTHER, OLC OFFERS ITS LEGAL OPINION IN WRITING, SO THAT THERE IS A FORMAL RECORD THAT THE EXECUTIVE ORDER WAS REVIEWED FOR LEGALITY, AND A FORMAL DOCUMENT SIGNED BY A RESPONSIBLE OFFICIAL IN OLC VOUCHING FOR THE LAWFULNESS OF THE PROPOSED ACTION.
I UNDERSTAND THAT THE CLINTON ADMINISTRATION CONTINUES TO FOLLOW THESE PROCEDURES.
THERE IS THUS NOTHING NECESSARILY SUSPECT OR UNLAWFUL ABOUT EXECUTIVE ORDERS. THEY ARE PART OF OUR CONSTITUTIONAL ORDER AND OF THE LONG-ESTABLISHED FUNCTIONING OF THE EXECUTIVE BRANCH. THE VAST MAJORITY OF EXECUTIVE ORDERS ATTRACT LITTLE ATTENTION OR CONTROVERSY. GIVEN THAT THE PRESIDENT IS POLITICALLY ACCOUNTABLE FOR THE PERFORMANCE OF HIS ADMINISTRATION, EXECUTIVE ORDERS OFFER A VALID AND NECESSARY MECHANISM FOR THE PRESIDENT TO EXERCISE HIS LAWFUL POWERS.
II. CONGRESSIONAL RESPONSES TO EXECUTIVE ORDERS
THE PRESIDENT'S AUTHORITY TO ISSUE EXECUTIVE ORDERS IS SUBJECT TO ABUSE, AS ARE ALL GOVERNMENT POWERS. UNDER THE GUISE OF DIRECTING THE EXECUTIVE BRANCH, A PRESIDENT MAY FURTHER POLICIES CONTRARY TO STATUTE, OR MAY SHIFT ENFORCEMENT PRIORITIES IN WAYS THAT FRUSTRATE THE INTENTIONS OF CONGRESS. SOME EXECUTIVE ORDERS MAY CROSS THE LINE BETWEEN EXECUTING THE LAW AND LEGISLATING.
THE THREAT OF ABUSE MAY BE PARTICULARLY HIGH WHEN CONGRESS AND THE EXECUTIVE BRANCH ARE CONTROLLED BY DIFFERENT PARTIES. CERTAINLY WHEN ADMINISTRATION OFFICIALS ANNOUNCE THAT THEY INTEND TO ADOPT SWEEPING EXECUTIVE ORDERS DESIGNED TO CIRCUMVENT CONGRESS, OR IN REACTION TO A DECISION BY CONGRESS TO REJECT PARTS OF THE PRESIDENT'S PROGRAM, CONGRESS IS RIGHT TO BE CONCERNED THAT ITS LEGISLATIVE POWERS MAY BE MISAPPROPRIATED.
THE RISK OF SUCH ABUSES, HOWEVER, SHOULD NOT LEAD CONGRESS TO CONCLUDE THAT ALL EXECUTIVE ORDERS ARE SUSPECT. NOR SHOULD CONGRESS ATTEMPT TO CONSTRAIN BY LEGISLATION THAT PART OF THE PRESIDENT'S EXECUTIVE ORDER AUTHORITY THAT DERIVES FROM THE CONSTITUTION.
RATHER, CONGRESS SHOULD BE VIGILANT TO GUARD ITS LEGISLATIVE PREROGATIVES AND TO MAINTAIN THE SEPARATION OF POWERS THROUGH ITS OWN CONSTITUTIONAL AUTHORITY. WHEN CONGRESS IS CONFRONTED BY AN EXECUTIVE ORDER THAT IT BELIEVES EXCEEDS THE PRESIDENT'S POWERS, IT HAS MANY TOOLS WITH WHICH TO RESPOND. FIRST, BY STATUTE ALL SUBSTANTIVE EXECUTIVE ORDERS ARE REQUIRED TO BE PUBLISHED IN THE FEDERAL REGISTER. 44 U.S.C. § 1505. CONGRESS AND THE PUBLIC THUS RECEIVE NOTICE OF EXECUTIVE ORDERS. CONGRESS MAY RESPOND TO AN EXECUTIVE ORDER BY EXERCISING ITS LEGISLATIVE POWERS TO ENACT CONTRARY LEGISLATION, OR TO DENY FUNDING TO CARRY OUT AN EXECUTIVE ORDER. ANY SUBSEQUENT CONTRARY LEGISLATION WILL BIND THE PRESIDENT'S DISCRETION, ASSUMING THAT THE LEGISLATION DOES NOT IMPERMISSIBLY INVADE THE PRESIDENT'S CONSTITUTIONAL POWERS.
THUS, FOR EXAMPLE, PRESIDENT CARTER ISSUED EXECUTIVE ORDER 11,988 IN MAY 1977. THAT EXECUTIVE ORDER WAS INTERPRETED BY THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT AS REQUIRING THE BANK REGULATORY AGENCIES TO PROHIBIT REGULATED INSTITUTIONS FROM MAKING LOANS SECURED BY REAL PROPERTY WITHIN A FLOOD PLAIN UNLESS FLOOD INSURANCE WAS AVAILABLE. SUBSEQUENT TO THE ISSUANCE OF THE EXECUTIVE ORDER, CONGRESS CHANGED THE LAW TO PERMIT SUCH LOANS, AND OLC NOT SURPRISINGLY CONCLUDED THAT "THE STATUTE TAKES PRECEDENCE OVER" THE EXECUTIVE ORDER. 2 OP. OFF. L. C. 41 (1978).
SECOND, A PRESIDENT MAY RESPOND TO POLITICAL PRESSURE OR COMPLAINT ABOUT AN EXECUTIVE ORDER. EXECUTIVE ORDER 13,083, PRESIDENT CLINTON'S ATTEMPT TO ALTER PRESIDENT REAGAN'S FEDERALISM ORDER, ELICITED SUFFICIENT PUBLIC OUTCRY THAT PRESIDENT CLINTON "SUSPENDED" HIS OWN EXECUTIVE ORDER BY MEANS OF A SUBSEQUENT EXECUTIVE ORDER. E.O. 13,095.
THIRD, CONGRESS AS A PROPHYLACTIC MATTER CAN LIMIT THE PRESIDENT'S ABILITY TO INVOKE STATUTORY AUTHORITY FOR EXECUTIVE ORDERS BY WRITING MORE SPECIFIC, MORE PRECISE LAWS. ALTHOUGH IN CERTAIN AREAS IT IS OFTEN NECESSARY OR DESIRABLE FOR THE PRESIDENT TO HAVE SUFFICIENT DISCRETION TO RESPOND TO CHANGING CIRCUMSTANCES, THAT IS NOT TRUE OF ALL LEGISLATION. CONGRESS FAILS TO PERFORM ITS ESSENTIAL LEGISLATIVE FUNCTION WHEN IT ALLOCATES EXCESSIVE DISCRETION TO THE EXECUTIVE. A VAGUE LAW THAT IMPOSES ON THE EXECUTIVE THE TASK OF BALANCING COSTS AND BENEFITS REMOVES THE DEBATE ABOUT THAT BALANCING FROM THE PEOPLE'S REPRESENTATIVES ASSEMBLED IN CONGRESS, AND RELEGATES IT TO A TECHNICAL WORLD OF REGULATION. A DIRECTION TO THE PRESIDENT, FOR EXAMPLE, TO MAKE HIGHWAYS "SAFER" WITHOUT ANY LEGISLATIVE CHOICE AMONG THE MANY COMPETING POLICY OPTIONS -- REQUIRING DIFFERENT AND MORE COSTLY AUTOMOBILE ENGINEERING, OR CHANGING HIGHWAY DESIGN, OR USING FEDERAL FUNDS TO ENCOURAGE THE STATES TO CHANGE THEIR LAW ENFORCEMENT POLICIES TO CONCENTRATE ON SPEEDERS -- WOULD GRANT THE PRESIDENT A GREAT DEAL OF DISCRETION TO MAKE POLICY CHOICES THAT CONGRESS FAILED TO MAKE.
FOURTH, CONGRESS COULD PASS A STATUTE THAT REQUIRED THE PRESIDENT, WHENEVER HE INVOKED A GRANT OF STATUTORY AUTHORITY TO JUSTIFY AN EXECUTIVE ORDER, TO IDENTIFY THAT STATUTE WITH PARTICULARITY. THAT WOULD AVOID THE PHENOMENON OF EXECUTIVE ORDERS BASED GENERICALLY ON UNSPECIFIED "LAWS OF THE UNITED STATES."
FIFTH, CONGRESS COULD ALSO BY LEGISLATION REQUIRE THE PRESIDENT, WHENEVER HE INVOKED A GRANT OF STATUTORY AUTHORITY TO JUSTIFY AN EXECUTIVE ORDER, TO SEND THE EXECUTIVE ORDER TO CONGRESS AND DELAY ENFORCING THE ORDER FOR THIRTY DAYS, TO GIVE CONGRESS AN OPPORTUNITY TO REVIEW THE ORDER AND DETERMINE IF A LEGISLATIVE RESPONSE WAS NECESSARY. CONGRESS PRESUMABLY WOULD WANT TO BUILD INTO ANY SUCH REQUIREMENT AN EXCEPTION FOR BONA FIDE EMERGENCIES.
SIXTH, CONGRESS HAS A HOST OF OTHER MEANS TO INFLUENCE THE PRESIDENT. CONGRESS CAN CONDUCT OVERSIGHT HEARINGS TO PRESS THE ADMINISTRATION TO EXPLAIN ITS LEGAL REASONING; CAN RESTRICT OR REDUCE APPROPRIATIONS; AND CAN TAKE SUCH INDIRECT ACTIONS AS SLOWING THE CONFIRMATION OF PRESIDENTIAL NOMINEES IN AN ATTEMPT TO PERSUADE THE PRESIDENT TO WITHDRAW A QUESTIONABLE ORDER. ACCORDING TO PRESS REPORTS, FOR EXAMPLE, THE SENATE DELAYED A CONFIRMATION VOTE ON ONE OF PRESIDENT CLINTON'S CABINET NOMINEES UNTIL THE PRESIDENT AGREED TO DROP A PLANNED EXECUTIVE ORDER THAT WOULD HAVE INSTRUCTED FEDERAL AGENCIES TO CONTRACT WITH UNIONIZED COMPANIES. E.G., THE BALTIMORE SUN, MAY 1, 1997 AT 2A.
FURTHER, IN ADDITION TO CONGRESS'S OWN POWERS TO RESTRAIN ABUSES, IN SOME CASES THE PRESIDENT'S ISSUANCE OF AN EXECUTIVE ORDER CAN BE SUBJECT TO JUDICIAL REVIEW. THE STEEL SEIZURE CASE INVOLVED A CHALLENGE TO AN EXECUTIVE ORDER. MORE RECENTLY, PRESIDENT CLINTON'S EXECUTIVE ORDER 12,954, INVOLVING STRIKER REPLACEMENTS, WAS HELD TO BE INVALID BY THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. CHAMBER OF COMMERCE OF THE UNITED STATES V. REICH, 74 F.3D 1322 (D.C. CIR. 1996). THE POSSIBILITY OF JUDICIAL REVIEW CANNOT REPLACE CONGRESSIONAL OVERSIGHT, HOWEVER. PRIVATE PARTIES ARE OFTEN UNWILLING TO SPEND THE TIME AND MONEY TO CHALLENGE THE FEDERAL GOVERNMENT, AND IN SOME CASES IT MAY BE DIFFICULT TO IDENTIFY PARTIES WITH STANDING TO SUE.
III. CONCLUSION
EXECUTIVE ORDERS ARE A PART OF THE PRESIDENT'S CONSTITUTIONAL AUTHORITY. CONGRESS HAS OFTEN ADDED TO THAT AUTHORITY BY GRANTING THE PRESIDENT BROAD STATUTORY DISCRETION. THE PRESIDENT MUST HAVE SUCH BROAD AUTHORITY TO DIRECT AND CONTROL HIS SUBORDINATES IN THE EXECUTIVE BRANCH.
IF AN EXECUTIVE ORDER EXCEEDS THE PRESIDENT'S AUTHORITY, CONGRESS MAY ACT LEGISLATIVELY TO CORRECT THE PRESIDENT, OR MAY USE ANY OF NUMEROUS POLITICAL TOOLS. IN A PROPER CASE, THE JUDICIARY IS ALSO ABLE TO STRIKE DOWN AN EXECUTIVE ORDER THAT IS CONTRARY TO LAW.
WHEN A PRESIDENT OVERREACHES AND USES EXECUTIVE ORDERS TO INVADE OR SUPERSEDE THE LEGISLATIVE POWERS OF CONGRESS, CONGRESS MAY BE SUFFICIENTLY PROVOKED TO CONSIDER AN ACROSS-THE-BOARD APPROACH TO REIN IN THOSE ABUSES. ALTHOUGH THAT REACTION IS UNDERSTANDABLE, CONGRESS MUST BE CAREFUL TO UNDERSTAND THE EXTENT TO WHICH EXECUTIVE ORDERS ARE A NECESSARY ADJUNCT OF THE PRESIDENT'S CONSTITUTIONAL DUTIES. AT ALL TIMES, CONGRESS HAS AMPLE LEGISLATIVE AND POLITICAL MEANS TO RESPOND TO ABUSIVE OR LAWLESS EXECUTIVE ORDERS, AND THUS CONGRESS SHOULD RESIST THE TEMPTATION TO PURSUE MORE SWEEPING, MORE DRACONIAN AND MORE QUESTIONABLE RESPONSES.
