The Uses and Abuses of Executive Orders (2), By Sadeeq Garba Shehu

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I would urge that we should be careful to avoid partisan politics masqueraded by the National Assembly as separation of powers issues. At the same time, a president who abuses his EO authority undermines the constitutional separation of powers and may even violate it. No constitutional power should be misused, irrespective of the benefit perceived for a political objective.

The Legitimate and Appropriate Use of Powers of the Presidential Executive Order

There are many legitimate uses of EOs pursuant to the functions of the president, as expressly mentioned in the Nigerian Constitution, in the exercise of constitutional and statutorily delegated presidential powers. In his function as commander-in-Chief, as head of state, as chief law enforcement officer, and as head of the executive branch. When the president is lawfully exercising any of these functions, the scope of his powers to issue EOs is exceedingly broad and he may issue or execute whatever written directives he deems appropriate.

Abuse of Powers of the Presidential Executive Order

While any broad power or discretion can be abused, it would be wrong to confuse such potential or real abuse with the many legitimate uses. Thus while there may be some illegal EOs (as may be determined by a court), there are legal EOs, as well as arguably legal but still highly improper EOs. This distinction between illegal and improper EOs is important for a variety of reasons.

How the National Assembly Can Check Presidential Use of Executive Order Powers

The next germane question is: What is the National Assembly (NASS)’s role in EOs? Other than relying upon the judiciary to determine the validity of EOs, the NASS has roles that may effectively oversee presidential action on EOs. The legislative role varies with the authority upon which the president bases his EO. Unless it is constitutionally based, NASS may directly affect an EO by either amending, nullifying, repealing, revoking, or terminating the authority on which it is founded. (It is instructive that the House of Representatives chose “suspending” EO 60). The NASS may also retroactively repeal the statutory authority in which the president based his EO, thus rendering any EO issued after the date established invalid. Another means by which the NASS may affect an EO, is to amend the language to include a sunset provision. With such provision, the NASS may extend the effective period of the necessary provision or let it lapse. If NASS lets the provision lapse, the president will no longer have the authority, with regards to this statute, to act. For example, the NASS may appropriate funds to continue a programme for say five years and specify that after five years, funding would terminate unless unauthorised by the NASS. NASS may also play a role in the president’s ability to issue an EO when the president relies on the authority which exists in a “zone of twilight.”

In this “zone of twilight,” the president and NASS may have concurrent authority or there may be uncertainty on the distribution of such authority. In either situation, legislative inertia, indifference or quiescence may leave the door open for the president to act. The NASS may either close the door or prop it open further. If the NASS wishes to close the door on the president in the “zone of twilight”, it may legislate in contradiction to the EO e.g. by passing a bill which prohibits the use of any appropriation or fund to pay the expenses of any agency or instrumentality established by the particular EO, thus using its power of the purse to prevent the president from using the EO to create agencies or activities that had no legislative authority. Other than attempting to derail an EO which exists in the “zone of twilight”, the NASS may want to prop up such action by enacting legislation in support of the president’s EO. One strong reason for NASS to do this would be to establish the legislature’s jurisdiction over that particular EO, as continued acquiescence towards an EO in a particular manner may be given great weight by the judiciary in determining who actually possesses such authority.

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…the ambiguity behind EOs poses a great concern to all stakeholders. At issue is the possibility that EOs may directly or indirectly usurp legislative powers, with the executive becoming a lawmaker. A proper understanding of a president’s power to issue EOs will enable both the president and the legislature to use this power confidently and lawfully…

The Role of the Judiciary In Case of Dispute About the Legality of Executive Orders

But the Constitution anticipated that the legislature and judiciary would jealously guard their prerogatives, and, setting power against power, unconstitutional excursions by the executive would be met with fierce resistance. When there is a dispute between the executive and legislature over the legality of an EO, the judiciary is expected to intervene and give an interpretation on this. The judiciary, especially in the U.S., has expanded its examination of EOs but the simple truth is that the courts cannot be counted upon to check presidential power. My research has been able to identify only two cases in the U.S. history since 1789 in which the courts have completely struck down an EO. While the U.S. Congress and the courts have taken action from time to time to examine and, at times, challenge presidential exercises of authority perceived to be unconstitutional, in Nigeria there is not yet a judicial review of EOs, thus there remains a wide divergence of opinion about the proper scope, application, and even legal authority of presidential directives. While the debate over EOs usually comes down to political bickering, the fact remains that unless the NASS passes a law banning EOs, which is upheld by the Supreme Court, the EO and its use by the Executive is here to stay.

Conclusion

In conclusion, the ambiguity behind EOs poses a great concern to all stakeholders. At issue is the possibility that EOs may directly or indirectly usurp legislative powers, with the executive becoming a lawmaker. A proper understanding of a president’s power to issue EOs will enable both the president and the legislature to use this power confidently and lawfully in the exercise of constitutional responsibilities and to implement important administrative policies. As a practical measure, an aggressive use of EOs may be necessary for a president faced with a hostile legislature.

Lastly, I would urge that we should be careful to avoid partisan politics masqueraded by the National Assembly as separation of powers issues. At the same time, a president who abuses his EO authority undermines the constitutional separation of powers and may even violate it. No constitutional power should be misused, irrespective of the benefit perceived for a political objective. If constitutional processes are violated, in the end, we all lose. I end with this quote by Montesquieu: “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.”

Sadeeq Garba Shehu, a retired group captain in the Nigerian armed forces, a legislative comparative constitutionalism researcher writes from Kaduna; email: sgshehu@gmail.com.

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