The Growth in Administrative Law
As government actions grew in scope and complexity, it became increasingly impossible to specify all the details in the laws being passed by Congress or Parliament. By the mid-20th century, most statutes had become fairly general in nature and they delegated to the executive branch the authority to elaborate the details over time. The resulting administrative law has become far more prevalent than the original parent statutes that authorize its creation. It consists of: (1) subordinate legislation in the form of rules and regulations and executive orders and (2) administrative adjudication in the form of decisions made by a great variety of boards and commissions that form part of the executive branch of government.
The Continuing Requirement for Statutory Authorization
Pervasive as administrative law has become, however, regulations and orders can only be issued and decisions made if these actions have been authorized in a statute. Thus, the rule of law remains intact and the courts have been quick to quash actions made without legal foundation. During the decade when Stephen Harper was Prime Minister, for example, a number of his initiatives were overturned by the courts because they lacked legal authority. The Supreme Court of Canada took this position with respect to several government actions, even after a majority of its members were appointees of the Harper Government.
What Is the Legal Authority for the President’s Executive Decrees?
The general situation is the same in the U.S. and, indeed, the courts have quashed, or imposed restrictions on, several of President Trump’s efforts to bar immigrants. However, throughout his first year, Trump has shown little interest in working with Congress – even though the Republican Party has held a majority of seats in both Houses. Rather, he issues executive decrees, often seemingly based on little more than an emotional reaction to some issue, one that is usually “previewed” through one of his constant flow of tweets.
From the media coverage of these executive orders, it is not readily apparent to me whether or not the President is acting on the basis of authority that has been conferred by some statute previously passed by Congress. Nor is it evident whether he is acting on the basis of some general discretionary authority (of which I am unaware) conferred by statute on the office of President. It is also often unclear – until considerable time passes – which of these Presidential decrees are for show only and which ones he attempts to implement.
What is clear is that Trump’s approach to governing presents a constant challenge to the rule of law as an underlying principle of American democracy. The notion that a President can legislate by executive decree in the absence of prior statutory authorization is not consistent with my understanding of government by the rule of law. To the extent that this situation now arises, the U.S. Supreme Court has an absolutely essential role to play in ensuring that executive actions without legal authorization are quashed.