President’s Use of Written Means of Communication As Law

There is so much confusion and disagreement on executive orders, memorandums, prosecutorial discretion, proclamations, and such that perhaps a closer look by Congress is needed to better define their authority.

Obama’s use of these vehicles to bypass congress is not new. Others have attempted or utilized them when needed. The problem comes when the abuse of overreaching law making crosses into uncharted territory or congress is hamstrung in lawmaking through their orders. Apparently all forms of written communication like orders are considered laws if a president writes them very much like a Chief Executive Officer in a corporation. Just like a CEO though rules of the corporation and laws of the country must be properly addressed. wrote a lengthy piece on this subject around 2001 titled “The Use and Abuse of Executive Orders and Other Presidential Directives by Todd F. Gaziano who was then Director of Center for Legal & Judicial Studies at
Edwin Meese III Center for Legal and Judicial Studies.

The Separation Of Powers

Our forefathers’ conscious design to enforce this separation of functions was carefully explained in The Federalist Papers and during the debates over ratification of the United States Constitution. The separation of powers is now enshrined in both the structure of the Constitution and various explicit provisions of Articles I, II, and III.

–“There can be no liberty where the legislative and executive powers are united in the same person.”
–Charles-Louis de Secondat, Baron de Montesquieu1
“The accumulation of all power, legislative, executive, and judiciary in the same hands…may justly be pronounced the very definition of tyranny.”
–James Madison, Federalist 46
“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
–U.S. Constitution, Art. I, § 1
“The executive power shall be vested in a President of the United States of America.”
–U.S. Constitution, Art. II, § 1, cl. 1

According to Gaziano:
“In the end, the constitutional separation of powers supports both sides of the argument over a President’s proper authority. It reinforces a President’s right or duty to issue a decree, order, or proclamation to carry out a particular power that truly is committed to his discretion by the Constitution or by a lawful statute passed by Congress. On the other hand, the constitutional separation of powers cuts the other way if the President attempts to issue an order regarding a matter that is expressly committed to another branch of government; it might even render the presidential action void. Finally, separation of powers principles may be unclear or ambiguous when the power is shared by two branches of government.

From the founding of this nation, American Presidents have developed and used various types of presidential or executive “directives.” The best known directives are executive orders and presidential proclamations, but many other documents have a similar function and effect. Reduced to their common core, presidential directives simply are written, rather than oral, instructions or declarations issued by the President. Because we would not expect or want the President to limit himself solely to oral instructions and declarations, it is not surprising that every President has used written directives to run the executive branch of government.”

General Definition of Communication in Writing by Presidents:

Proclamation – Heads of state had issued proclamations commemorating victorious battles and national holidays for centuries, and there was no reason for Congress or the President to conclude that the Constitution removed this ceremonial function from our head of state.

Executive orders, memorandums, directives or any other form of written instruction: Executive orders communicate presidential decisions that have a legally binding effect. Authority for these directives must come from either the Constitution or statutory delegations.

–the President lacks executive authority explicitly granted to Congress.
–specific constitutional provisions may check customary executive authority. Notwithstanding his executive power, the President cannot make treaties or appointments without the advice and consent of the Senate. Likewise, the President’s pardon power is limited to offenses against the United States (federal crimes) and does not extend to impeachments or violations of state law. Additionally, since official treaties are specifically created under and by constitutional U.S. law and are entered into by both government and the people as a whole, in his capacity as head of state and as the single individual representative of the United States and its citizens, the President does have Co-authority and Constitutional duty to unilaterally withdraw the United States from treaties if he determines the best interests and well-being of the U.S. and its citizens are benefited by doing so.

As Gaziano explains there appears to be a gray area between the rights expressly given the president and the congress when it comes to the public. This appears to have been crossed especially during Bill Clinton’s administration. The Supreme Court did invalidate a particular executive order he wrote which crossed from executive branch to affecting the public as was adequately demonstrated by the lawyers. So the Supreme Court “could” step in on a presidential decree or order.

For the most part, the president’s rights to make law has been allowed to overshadow the rights of congress since the 1940’s with each succeeding president, especially during Bill Clinton’s presidency. So to prevent further graying, it should be time for congress to write a constitutional amendment placing exact parameters between federal agencies, executive prosecutorial discretion, and rights of president on lawfully allowed executive orders before another president through his actions dissolves the rights of the three branches and assumes autocratic authority.

The reason I bring this up is that right now and until the last day, Obama is making moves in the executive branch and actually affecting the public which will have to be challenged and reversed. Each of them is guaranteed to slow or stop Trump from further efforts in given areas. Here are the ones currently listed by the White House newsroom.

December 20, 2016
Presidential Memorandum — Withdrawal of Certain Areas off the Atlantic Coast on the Outer Continental Shelf from Mineral Leasing – while given the right from “time to time” Obama is attempting to make this permanent

December 20, 2016
Presidential Memorandum — Withdrawal of Certain Portions of the United States Arctic Outer Continental Shelf from Mineral Leasing – withdraw from disposition by leasing for a time period without specific expiration of the Outer Continental Shelf

December 15, 2016
Presidential Proclamation — To Implement the Nepal Preference Program and for Other Purposes – designate certain articles as eligible for duty-free treatment when imported from Nepal, modify the HTS continuation of tariff and certain other treatment accorded originating goods under tariff categories, designate the Central African Republic as a beneficiary sub-Saharan African country

December 09, 2016
Message to the Senate — UN Convention on Transparency in Treaty-Based Investor-State Arbitration – Should the United States become a party, the Convention would require the transparency measures to apply to arbitrations under U.S. international investment agreements concluded before April 2014

December 09, 2016
Executive Order — Northern Bering Sea Climate Resilience

December 08, 2016
Presidential Determination and Waiver — Pursuant to Section 2249a of Title 10, United States Code, and Sections 40 and 40A of the Arms Export Control Act to Support U.S. Special Operations to Combat Terrorism in Syria

December 09, 2016
Message to Congress — Brazil Social Security Agreement

December 05, 2016
Presidential Memorandum — Steps for Increased Legal and Policy Transparency Concerning the United States Use of Military Force and Related National Security Operations

December 05, 2016
Presidential Memorandum — Steps for Increased Legal and Policy Transparency Concerning the United States Use of Military Force and Related National Security Operations

December 02, 2016
Presidential Determination — Pursuant to Section 570(a) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997

December 01, 2016
Presidential Determination — Suspension of Limitations under the Jerusalem Embassy Act

December 01, 2016
Presidential Proclamation — To Modify the Harmonized Tariff Schedule of the United States and for Other Purposes

November 16, 2016
Presidential Memorandum — Eligibility of the Multinational Force and Observers to Receive Defense Articles and Defense Services

Now add whatever directives have NOT made it to the White House list.  According to the Daily Caller , EPA has suddenly deleted thousands of records and got caught.  Newsmax reported today that DHS supposedly is to delete the National Security Entry-Exit Registration System if it hasn’t already happened.  Also add his last-minute appointments to positions of his usual leftists for at least two-year terms to prevent Trump from filling them.


With congress not in session until the 115th congress takes over, Obama is doing everything he can to screw up the next administration’s ability to move forward. There is a bill that passed the House but has not yet passed the Senate to eliminate Obama’s “midnight actions” but I seriously doubt even that would have prevented the overall order Obama must have issued in the past month to reduce, eliminate, and stop the president-elect from going about his duties.

Trump and his crew are going to have a terrible time trying to sort out the mess Obama is leaving and figuring out what has been deleted from governmental records and emails “accidentally on purpose”.  All of the records should have been archived in the main library data files but odds are little has or will be by the time Trump takes office.


About Uriel

Retired educator and constitutionalist
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6 Responses to President’s Use of Written Means of Communication As Law

  1. Hardnox says:

    None of these EOs, directives, whatever, are lawful. Congress can easily erase them. Ditto with Trump and his pen.

    Congress has 100% purview of laws. The Executive branch cannot make law. Period.

    • Uriel says:

      Executive orders are lawful FOR federal government NOT to affect all citizens. However even those are bound by laws written by CONGRESS. It is the shame of all congresses before that they did not challenge thereby diminishing their rights and accept the Presidents EO as governing above them. They have eroded their own strength and power.

      • Hardnox says:

        An EO used to be for simple stuff like directing the US Park Service not to cut the grass on Saturdays and Sundays. Batears has used them write or rewrite existing laws. He hired John Podesta as his EO Czar in order to circumvent Congress. That is clearly unconstitutional. Congress has the oversight on ALL agencies. All these regs they keep cranking out are illegal. Only Congress can create law.

        Batears was never challenged because that would be racist or something…

        Too bad we need a functioning Congress to make this happen. Wait for it… Congress will finally find their gonads when Trump is sworn in.

  2. Just Gene says:

    I heard some newspeak say they can’t be changed because there is no precedent to do so – they really do not get it – THE DON does not follow precedent – HE MAKES THEM!!!!!!!!!!!!!!!!!

    • Uriel says:

      There IS precedent to do so. Clinton and Supreme Court prove it can be done. However it must be against the security and rights of citizens not pertaining to Feds. Every one affecting those which are NOT inclusive of President rights of power CAN be challenged. Congress over the years abdicated the law making powers at timed. THEY are at fault for not pursuing.

      • Uriel says:

        Pres has rights of power – military, treaties (as CO-author), approve or decline congressional bills, and immigration ALL need Senate assent. Other than that he NOR any of his agencies (i.e.-EPA, DHS,) NOR Supreme Court have been given the right to make or amend laws. He can dissolve a treaty if he believes it is bad. Every instance EPA or DHS has made rulings or amended, or ignored law as prosecutorial discretion can be thrown out. I HOPE Santa does bring them titanium balls for Christmas. So long as RINOS and libtards are able to object though it is doubtful. Maybe they need a small liberty bell to ring while voting. AND every NAME and their vote televised on every bill. I also think they need a time limit for approval from beginning to completion on every proposed bill say 2 months and verification of its standing as well as sunset.