Study of President’s Authorities

The Boundaries of Executive Authority: An Evaluation of Priority Proposals from the Presidential Climate Action Plan

July 30th, 2008|

July 2008 – A Report by the Center for Energy & Environmental Security Produced for the Presidential Climate Action Project


This report is a follow-up to a previous report issued by the Center for Energy and Environmental Security (CEES) in February 2008, The Boundaries of Executive Authority: Using Executive Orders to Implement Federal Climate Change Policy. In that report we summarized and brought together in one place the most applicable guidance on the legal boundaries of executive authority, with a focus on the use of executive orders to implement appropriate provisions of the Presidential Climate Action Plan. The Presidential Climate Action Plan, developed by the Presidential Climate Action Project (PCAP), is a comprehensive action plan to address climate change nationally and is the result of combined expertise of respected groups and individuals from around the country who are from science, policy, legal and other backgrounds.

The PCAP Report transforms policies into action items that can be taken at the federal level by, for example, Congress or the President to address climate change. PCAP has identified specific action items from their national plan as priorities which we will refer to as proposals. These serve as examples of the actions the next President can take to address climate change. In this report, CEES evaluates implementation of each of these priority proposals by executive order or other executive directive by identifying the relevant legal authority or authorities that are applicable to each specific proposal, analyzing these authorities, and then evaluating each proposal in terms of implementation by executive directive based on an assessment of a number of factors which are described below.

The Boundaries Report delineates the authority of the President to use executive directives in general terms and also addresses topics of special interest to climate action policy, such as regulating greenhouse gas emissions (GHGs) under the Clean Air Act and supporting climate mitigation through federal procurement. The legal analysis included in the Boundaries Report will be referenced where applicable but not repeated in this report. The two reports should be considered together as companion reports.


Read full report here: The Boundaries of Executive Authority: An Evaluation of Priority Proposals from the Presidential Climate Action Plan

The Boundaries of Executive Authority: Using Executive Orders to Implement Federal Climate Change Policy

February 28th, 2008|

February 2008 – A Report by the Center for Energy & Environmental Security Produced for the Presidential Climate Action Project


The Presidential Climate Action Project (PCAP) has developed a comprehensive plan to address climate change nationally by drawing upon the combined expertise of various groups and individuals from science, policy, legal and other backgrounds. The plan has been developed for implementation at the federal level and is national in scope. It is anticipated that significant components of this plan will be implemented through both the executive and legislative branches at the federal level. As implied by the name of the Project, however, PCAP is giving special focus to those actions that the Chief Executive of the United States, namely the next President, may take with maximum certainty by using the authority of that office. The Center for Energy and Environmental Security (CEES) has been asked to prepare a report on the legal boundaries of executive authority with emphasis on the use of executive orders to implement appropriate provisions of the Climate Action Plan.

The focus of this report is not what has been done in the past by presidential directive, or what might be “possible” to implement by executive order. Rather, the focus is on those actions that can be taken using executive authority, primarily executive orders, with credibility, integrity and within the legal parameters of our constitutional form of government, without regard to the probability that any particular action might go unchallenged. As noted throughout the literature addressing this issue, there are intentionally no hard and fast rules regarding the use of executive authority and when challenges are made the courts are quite deliberate and open that rulings in this area are very contextual. That is, the determination of whether the executive has the authority to take the action being challenged is very dependent on the details of the case and the rulings issued in this area are uniformly narrow in scope. However, this does not mean that there is no guidance at all in this matter, and to the extent that we could, we have attempted to summarize and bring together in one place the most applicable guidance with a focus on the use of executive orders to implement climate action policy. Within this analysis we highlight areas of “maximum certainty,”essentially identifying the strongest starting points from which the President can claim authority.


Read full report: The Boundaries of Executive Authority: Using Executive Orders to Implement Federal Climate Change Policy