ON PRESIDENTIAL EXECUTIVE ORDER NO. 6
The declared purpose of the Presidential Executive Order No. 6 of 2018 is to restrict dealings in suspicious assets connected with “corruption” (broadly defined to incorporate several unrelated offences) in order to preserve same until final determination by a court of competent jurisdiction of any corruption-related matter against an affected person. Because the instrument of Executive Order is relatively unfamiliar in Nigeria, in what follows I shall attempt to clarify its constitutional basis and limits and then assess, briefly, whether this particular Order passes muster for constitutional validity. Critics are many, and, even if they be wrong, are doing us great service. Constant vigilance is the price not only of liberty but also of constitutionalism. For, as the inimitable Justice Felix Frankfurter, U.S. Supreme Court, observed, “the accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of restrictions that fence in even the most disinterested assertion of authority.”
In the first section of this essay, I shall situate the instrument of executive orders in the constitutional context of presidential authority and the Separation of Powers. As the instrument is frequently used in the United States, Section II outlines the American constitutional doctrine. Section III closely examines the terms of Executive Order No.6, and the final Section, IV, concludes the essay with a definitive consideration of its constitutionality.
I. THE SEPARATION OF POWERS AND PRESIDENTIAL AUTHORITY
Executive Orders are unilateral Executive measures that are in essence written presidential instructions to the Executive Branch. They are almost unavoidably controversial where they are issued by the President outside a specific statutory mandate authorizing it. That is because the principle of Separation of Powers is a fundamental tenet of our constitutional order. Legislative powers of the Federation are specifically vested by the Constitution in the National Assembly. In the United States, where the Constitution vests in Congress “ALL the legislative powers herein granted” (Article, I, section 1), the Supreme Court has stated that this is the totality of legislative powers. No one has emphasized this more clearly than Justice Black. The Constitution, he said, “is neither silent nor equivocal about who shall make laws which the President is to execute. …The Founders of this Nation entrusted the law making power to the Congress alone in both good and bad times.” In Nigeria, section 4(1) of the Constitution vests in the National Assembly “THE legislative powers of the Federal Republic of Nigeria.” “The” is a definite article. In English grammar, both “all and “the” belong to a sub-class called determiners used before a noun or a noun phrase to indicate that it is specific or general. The grammatical context of the two constitutional provisions clearly intends to encompass the totality of legislative powers.
Despite Article I, section 1, Executive Orders are issued frequently by American Presidents. President F.D. Roosevelt issued a record 3,522 during his long presidency. His uncle, President Theodore Roosevelt as well as Presidents Woodrow Wilson and Calvin Coolidge each issued over a thousand. President Trump, who has been in office for less than two years, has already issued about eighty. In fact, Executive Orders were the preferred instrument for achieving some of the most important policy changes in the United States, including the Emancipation Proclamation (1863) (Lincoln), racial integration of the U.S. armed forces (1948) (Truman), and the desegregation of public schools (1957) (Eisenhower). More recently, in 2014, President Obama issued a dozen executive orders directing various agencies in the departments of State, Justice and Homeland Security to refrain from deporting about four million adults illegally present in the United States if they are the parents of children born in the United States or legally present in the country and if they hold a job, complete a high-school diploma (or its equivalent), pay taxes and avoid jail time. There is scarcely any problem with an Executive Order that is merely a direction by the President that a policy enacted by Congress is executed in the manner prescribed by Congress. But it becomes problematic, and possibly unconstitutional and invalid, where it amounts instead to a directive that a presidential policy be executed in a manner prescribed by the President. Sometimes Presidents resort to Executive Orders where they are unable to get the co-operation of Congress to legislate a policy, or where congressional action is slow. This power is mainly justified by the President’s constitutional mandate to “take care that the laws be faithfully executed” (Article II, Section 3). But it is not clear if this is sufficient justification. For, as Justice Holmes said long ago, “The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.” (Myers v. United States, 272 U.S. 52, 177 (1926)).
Therefore, no Executive Order may lawfully be contrary to existing law or the Constitution. Accordingly, one clear occasion where an Executive Order will be valid is where legislative power over a subject has been donated to the President by the legislature to legislate policy on the subject as long as it does not exceed the powers donated, even though it is not clear, constitutionally, whether the legislature may delegate power carte blanche (Hampton v. United States, 276 U.S. 394, 401 (1928)). There are, in Nigeria, I submit, two exceptions, whereby the President may lawfully issue Executive Orders contra legem. The first are measures taken by the President after a Proclamation of a State of Emergency under section 305. This ends of course where the National Assembly fails to pass a resolution supported by two-thirds of all its members approving the Proclamation (section 305(6)(b)). (Even with the approval of the National Assembly the exercise of this power has a six-month duration at a time.) This presidential power came with the Constitution of 1979. Previously, in the Constitution of 1963, the responsibility to proclaim a “period of emergency” was vested in Parliament (Section 70(3)(c)), and not the executive.
The second exception is the President’s capacity as Commander in Chief of the Armed Forces of the Federation (section 130(2)). This constitutes an independent basis for the President to lawfully issue directives to the armed forces concerning military measures, which may also affect civilians. It is interesting that President Lincoln justified the Emancipation Proclamation he issued in January 1863, during the Civil War, as a war measure even though it affected the civil status of civilians – Africans held in servitude in the rebellious states (see James Randall, CONSTITUTIONAL PROBLEMS UNDER LINCOLN p. 374). The Proclamation was three years ahead of the adoption of the Thirteenth Amendment to the U.S. Constitutional that made slavery and involuntary servitude unlawful and unconstitutional in that country. The President as Commander in Chief has, however, only a limited mandate for Executive Orders. As Justice Jackson said of the American President in the leading American case, “There are indications that the Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy [Article II, section 2] will constitute him also Commander in Chief of the country, its industries and its inhabitants.” Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579, 644 (1952)).
Neither of these two exceptions, state of emergency powers or commander in chief powers, is relevant to Presidential Executive Order No. 6.
II. THE AMERICAN DOCTRINE
As we have seen, American Presidents frequently resort to issue Executive Orders even though the Constitution vests all legislative powers in the Congress. The constitutional status of Executive Orders was fully considered by the U.S. Supreme Court in the Youngstown Sheet & Tube Co. (cited above). On April 8, 1952, to pre-empt an imminent strike by steel workers, President Truman issued Executive Order No. 10340, directing his Secretary of Commerce to take temporary possession of the plants of steel companies involved in a labour dispute. Congress was immediately notified by the President. The directive was justified principally as a national security measure, as steel was critical to armament production that was needed by the United States military and allied forces engaged in operations in Korea. Nonetheless, a federal district court issued an injunction in favour of the owners of the steel mills, and the Supreme Court, by a majority, held that the Executive Order was contrary to existing legislation and the Constitution. One of the majority judges, Jackson, J., offered an insightful analysis of the scope of the President’s powers to lawfully issue Executive Orders.
Justice Jackson began by stating that although separation of powers is enshrined in the Constitution, the fundamental law also diffuses power and “contemplates that practice will integrate the dispersed powers into a workable government.” According to this perspective, it follows that “Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” Justice Jackson then proceeds to identify three discrete categories of practical situations with different legal consequences for the President’s power relative to that of Congress. These are: where an Executive Order is mandated by the legislature; where it is based on independent presidential power; and where it is contrary to the will of the legislature, respectively. In his word (pp. 635-36, emphasis supplied),
“[First,] WHEN THE PRESIDENT ACTS PURSUANT TO AN EXPRESS OR IMPLIED AUTHORIZATION OF CONGRESS, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth), to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
[Second,] WHEN THE PRESIDENT ACTS IN ABSENCE OF EITHER A CONGRESSIONAL GRANT OR DENIAL OF AUTHORITY, he can only rely upon his own independent powers, but there is a twilight in which he and Congress may have concurrent authority, or which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invites, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than abstract theories of law.
[Third,] WHEN THE PRESIDENT TAKES MEASURES INCOMPATIBLE WITH THE EXPRESSED OR IMPLIED WILL OF CONGRESS, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. …Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”
Stacked upon one another, these three categories look like an inverted pyramid. The President’s power to issue an Executive Order is broadest and most secure where there is an express or implied authorization by the legislature, such as a legislation giving the President power to take certain measures. In contrast, his power is slimmest and contested where an Executive Order is expressly or impliedly inconsistent with existing law. Between these two is an uncertain middle zone, where the President has independent power to take measures to regulate a situation where the legislature has not yet acted. In that event, the President’s legal capacity to issue an Execute Order will depend on the nature and scope of his independent power as well as the imperativeness to act.
III. REVIEW OF EXECUTIVE ORDER NO.6
The use of Executive Orders by the President is, therefore, in principle not constitutionally impermissible. It is a necessary attribute of the panoply of the status of President in our presidential system. The exercise of the power only becomes objectionable where the content of an Executive Order exceeds the powers of the President, or where it is contrary to or inconsistent with legislation or the Constitution. The thrust of the criticisms of Executive Order No. 6 is that it is legislative measure by the President contrary to the constitutional principle of the separation of powers, and that it abrogates the constitutional rights of citizens and violates the statutory mandate of law enforcement agencies by subjecting them to the supervisory control of the Attorney General of the Federation. For example, Professor Chidi Odinkalu, writing in Premium Times, argues that the Executive Order is “manifestly outside the powers of the President. At worst, it’s an awful advertisement of presidential hubris and overreach. …PEO No. 6 is a squalid attempt at a power grab or untheorized act of constitutional vandalism in defiance of the separation of powers in the 1999 Constitution. It’s not worth the paper it is written.” Similarly, Eze Onyekpere, in an opinion piece in Punch, adds, “Creating a schedule in an executive order and listing the names of suspects or accused persons whose property the Executive Order purports to block or freeze is like placing the cart before the horse and as such, it is illegal, unconstitutional, null and void and an audacious attempt by the President using his Attorney General to usurp judicial powers.”
Of course, we cannot know whether any allegation that the Executive Order falls short of the constitutional standard will stand before we examine the provisions of the Order. The proper place to begin is the legal authority the President claims for his competence to make the Order. Section 5 of the Constitution is the authority disclosed in its recital. According to that Section, the executive powers of the Federation (vested in the President) “extends to the execution and maintenance of the Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.” This provision performs the same function as Article II, Section 3 of the United States Constitution (above). As we saw in the first Section of this essay, the power does not authorize the President of the United States to act contrary to laws set by Congress. It follows, therefore, that the power of “the execution and maintenance of the Constitution and laws” vested in the President by Section 5(1)(b) of the Nigerian Constitution cannot be exercised outside the confines of the Constitution and existing law. It is, after all, a power to enforce laws, not to amend or override them.
Executive Order No. 6, in addition, makes the ingenious claim that the executive power of execution and maintenance of the Constitution is sufficient justification for the President to take measures to realize the constitutionalized political objective of State to “abolish all corrupt practices and abuse of power” (Section 15(5)). In the United States, as we have noted, Executive Orders have also been used to achieve constitutional objectives, such as protection of civil rights, where a Congressional action is lacking. However, where a matter is regulated by legislation unless presidential measures can be taken without violating any existing legislation by the National Assembly, it is hard to see how unilateral action by the President is permitted by Section 5. And Section 15(5) is not an independent source of presidential power.
From the foregoing, we can safely conclude so far that, not being a measure taken pursuant to a Proclamation of Emergency or in the capacity of Commander in Chief, the litmus test for measuring the constitutionality of Executive Order No. 6 is whether any of its provisions violate the Constitution or any existing legislation. The Order has seven sections and two schedules. The First Schedule is several pages long, listing one hundred and fifty-five criminal cases pending in court that are “immediately affected by the Executive Order.” The Second Schedule is a list of nineteen “agencies of the federal government of Nigeria affected by this Order.”
The Executive Order appears to take every care to avoid any conflict with existing law. The first section opens with the disclaimer “without prejudice to any laws or existing suits or any other rights arising out of or in respect thereof” (Section 1(a)), and again “Provided however that the Attorney General shall at all times in this connection, employ all available lawful or statutory means, including seeking the appropriate order(s) of court where necessary” (Section 1(c)(iii)). See also, Section 1(c)(iv) and (d). (It is almost unnecessary to explain here that “necessary” in the foregoing text means “legally necessary.”) The function these caveats in Section 1 is that any apparently overinclusive language in the Order is expected to be read down, as lawyers say, to avoid that effect. Section 1 does not authorize the unilateral administrative seizure of assets, but instead, it requires that the control of affected assets shall be secured “by employing all available lawful or statutory means, including seeking the appropriate order(s) of court where necessary.”
Under the Constitution, criminal offences can only be created or authorized by legislation. Unless the power is delegated by the National Assembly, it is emphatically unconstitutional for the President to render any conduct punishable as a crime by Executive Order. Perhaps, therefore, the “offences” listed in Section 2 have no separate existence from existing offences, as the section makes it clear that any infraction “shall be prosecuted in line with the provisions of any Law(s) governing unlawful acts.” To be fair, the drafting of this provision is inelegant. For, it is just as plausible that the phrase (prosecution according to existing law governing unlawful acts) refers specifically to the law governing prosecution of offences, or criminal procedure, rather than the law creating criminal offences. Read in this manner, Section 2 intended to criminal offences and is therefore void, unless there is an enabling legislation authorizing the President to create these offences. I think not.
Section 3 preserves the constitutional right to judicial recourse of any person whose right is infringed or likely to be infringed. The Executive Order does not, therefore, exclude judicial review. It would be unconstitutional if it did anyway.
What seems problematic is the following clause in Section 1(a): “This provision shall, in particular, apply to those [assets] connected with persons listed in the First Schedule to this Order, (or any such list as may be issued by the Attorney General of the Federation and Minister of Justice).” However, this problem dissolves if the clause is read down to avoid the apparent problem of overinclusiveness. From that perspective, it follows that the present clause merely subjects the persons listed in the First Schedule to the regime of “all available lawful and statutory means, including the appropriate order(s) of court where necessary” provided for in Section 1.
Finally, it has been suggested by some that Executive Order No. 6 undermines the statutory autonomy of the law enforcement agencies list in the Second Schedule by placing them effectively under the supervision of the Attorney General for the purpose of implementing the Order (Sections 1(c)(i), and 4). It is difficult to accept this objection because this is a role that the Constitution already entrusts to the Attorney General. Apart from his constitutional status as the nation’s chief prosecutor (Section 174), the Attorney General is specifically named by the Constitution as the Chief Law Officer of the Federation. At any rate, according to the specific terms of the Executive Order, the Attorney General may only lawfully co-opt the law enforcement agencies or any other person or entity “as may be required or PERMITTED BY APPLICABLE Law in order to give effect to this Executive Order” (Section 1(c)(i)). The mother statutes of these agencies are captured in the phrase “applicable law.”
IV. CONCLUSION
The President cannot lawfully by Executive Orders take away constitutional rights, or re-write existing legislation or render them nugatory. But almost everything else he can do as long as he recognizes that the legislature is the master of the legislative field. The President operates at the margins. He cannot tread on the foot of parliament, for, “With all its defects, delays and inconveniences,” remarked Justice Jackson, “men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.” (p. 655)
It is definitely within the competence of the National Assembly, as the organ the Constitution vests “the legislative powers,” to override even a lawful Executive Order, whether by replacing it with a new or otherwise incompatible legal regime or simply by repealing it. But the legislature can do so only by legislation, the prescribed mode of exercising legislative powers. Under the Constitution’s scheme of checks and balances, the President may, of course, exercise his veto power to frustrate the National Assembly’s move against an Executive Order. Unless the legislature can override the veto by the prescribed super-majority, the Executive Order stands for the time being. Therefore, the rejection of Executive Order No. 6 by an ordinary resolution the House of Representatives on 11 July 2018, although it undoubtedly amounts to a censure, cannot affect the legal status of the Order. The occasions where a resolution of the National Assembly has a binding effect outside the legislature are specifically identified by the Constitution. One that comes to mind immediately, since we are discussing the subject, is Section 305 which requires a Proclamation of a State of Emergency by the President, and any extension beyond six months, to be approved by a resolution of the National Assembly.
Given our federal Constitution, where the National Assembly lacks power to legislate over a matter (because it is assigned or reserved by the Constitution to the State Houses of Assembly), the President equally lacks power to issue an Executive Order with respect to that matter, except when exercising his powers under Section 305 or as Commander in Chief.
A court of proper jurisdiction may strike down an Executive Order that is a violation of the Constitution or any existing legislation. We have already seen the example of Youngstown Steel case (above). Similarly, twenty-four States and the U.S. House of Representatives successfully challenged President Obama’s immigration executive orders in the U.S. courts.
Finally, the issuing President or a future President may revoke or revise an Executive Order.
Presidential Executive Order No. 6 of 2018 has been controversial more because of the unfamiliarity of the instrument in our clime, aggravated by the apprehension of undue expansion of presidential power, than the actual scope of its terms. A patient examination shows that it does not create new law. It neither adds to nor detracts from existing law. Shorn of its acquired reputational baggage of imperialness, it is, as executive orders go, an administrative directive by the President to the Attorney General and agencies of the Executive Branch to stimulate vigour in the fight against the scourge of corruption using all existing lawful means. The rest of us are merely put on notice.
Solomon Ukhuegbe 