Executive Order versus Legislation

Yesterday Matt Hanzlik shared his excitement over the executive order signed by President Obama. (Round of applause for Matt’s awesome post as New Voices' first guest blogger!) As exciting as the EO is, there will certainly be stem cell legislation soon as well. This begs the question though: If President Bush’s EO was strong enough to halt research for eight years, isn’t President Obama’s reversal equally powerful?

The short answer is yes. Of course it is. However, for long-term sustainability, congressional legislation is necessary.

The power to give executive orders is not expressly given in the Constitution of the United States. However, since 1789 the power has been derived from two places in Article II:

Section 1:
The executive Power shall be vested in a President of the United States of America.

Section 3:
...he shall take Care that the Laws be faithfully executed...

Whereas the Constitution is very clear about legislating the laws of the land in Article I:

Section 1:
All legislative Powers herein granted shall be vested in a Congress of the United States...

Over time, the balance of power between the three branches of government has shifted in the U.S. government, rendering it less ideally balanced than the founding fathers intended. Due to this shift, it takes a new president to overturn an executive order. To overturn legislation (which is detailed in the Constitution) it takes an act of Congress (a new law) or a ruling that a law is unconstitutional from the Supreme Court.

So for stem cell research to continue without further interruption, legislation is the best policy solution because:

1. Legislation is not time sensitive. As we saw on Monday, all it takes is a new president to change the policy again without a law.
2. Getting a bill through Congress - particularly one that is likely to be controversial - can take a really long time. This gives advocates an opportunity to show elected officials that people support the issue.

For more on this issue and the details surrounding this specific executive order, see Sheryl Stolberg's piece in the New York Times.