Executive Law Making in the U.S. and Bangladesh: A Study into the Institutional Restraints

M. Jashim Ali Chowdhury*

[Published in Graduate Lawyers At Tulane Law Review, Vol 1 No 1 (May 2015) pp 33-42, Tulane University Law School, Louisiana, USA. Available online: ]

1. Introduction

In the United States, the president’s ability to formulate and shape policies through executive order is primarily attributed to a congressional delegation of authority to him. This may be by way of a law expressly or impliedly authorizing him to issue any order or regulation for the implementation of its contents or purposes. Sometimes, on matters of serious implications such as national security and foreign policies, presidents are seen taking unilateral moves to issue executive orders without prior statutory sanction of Congress. Challenged in the court, administrations usually justify such unilateral moves on the basis of president’s plenary executive power, his duty of faithful execution of laws, responsibility as commander-in-chief and exclusive responsibility for the conduct of diplomatic and foreign affairs.

Whatever the source, the executive orders have profoundly influenced the institutionalization of American democracy. Those received significant attention from both Congress and the Supreme Court. Apart from congressional hearings and studies seeking to limit the presidential law-making authority, the Supreme Court also continues to play a double check since 1804.  The court has accepted in principle that executive orders based on legitimate constitutional or statutory grounds rank equal to law.  Yet the Court has shown a consistent interest in making sure that constitutional aspiration for limited government has been respected by those orders.

In contrast, the ordinance-making power of the President of Bangladesh is an express constitutional grant.  The President, acting in advice of the prime minister, promulgates an ordinance at a time when parliament is not in session. The Parliament however is given a direct say over the presidential law-making. Every ordinance must be laid before Parliament immediately after it comes into session. An ordinance not endorsed, and transformed into an Act, by parliament within thirty days of its coming into session must die its legal death.  Also there are some substantive and procedural restrictions on ordinance power imposed by the constitutionally or judicially. 

Unlike the United States Supreme Court, the Supreme Court of Bangladesh has a textually granted power of judicial review.  Though there are occasional hesitations attributable to periodic resurgence of authoritative presidency, the Supreme Court has shown a general eagerness to look into the presidential ‘satisfaction’ on necessity of an ordinance. Given the opportunity, the court made extensive probes into the contents of ordinances to see whether they fit in the ‘letter and spirit’ of the Constitution. 

While the seemingly well articulated mechanism of Bangladesh may generate complacency, experience shows that the U.S. system of interactive institutionalism has worked far better than the constitutional textualism of Bangladesh. Against this backdrop, this paper endeavors to analyze and cross match the institutional environment within which the practice of executive law making operates in two jurisdictions. Part II of the paper gives a general introduction to the systems of presidential legislation in the U.S. and Bangladesh. Part III discusses the institutional arrangements of restraints in both the jurisdictions. Part IV attempts to analyze the interpretative techniques employed by the two supreme courts sitting over the judgment of an executive law. The paper ends with a functional argument of constitutionalism that a constitution that reads better may yield less than a constitution that works perfect.

2. The Systems of Presidential Legislation

2.1. Executive Orders of the U.S. President

The U.S. President’s ability to formulate and shape policies through Executive Orders is not an express constitutional mandate. A by-product of the rise of administrative state in the U.S., this power originated from congressional delegations of authority. Congress expressly or impliedly authorized the presidents to issue orders or regulations for the implementation of its statutes’ contents or purposes. Therefore, the initial understanding of executive orders comprised “all directives of the president which were directed to, and govern actions of, government officials and agencies.”  Initially not expected to lay a direct impact on private citizens, the presidential orders have gradually blurred the line of impact. Apart from organizing and running their respective administrations, the U.S. presidents sought to deal complicated issues like individual property,  labor rights,  official secrets,  and intelligence surveillance  through executive orders. During the formative periods of the republic, major breakthroughs like establishment of the executive office of the president,  integration of armed forces  and introduction of affirmative action policies  were accomplished through executive orders.

Moreover, presidents moved unilaterally in areas like national security and foreign affairs. Such moves, when challenged in the court, were often justified on the basis of the president’s plenary executive power,  his duty of faithful execution of laws,  responsibility as commander-in-chief  and ‘exclusive responsibility’ in diplomacy and foreign affairs.  Presidents also took the opportunity of 'congressional inertia, indifference, or acquiescence’  in otherwise non exclusive areas of state affairs. Not stopping there, modern day presidents seek to influence, guide and even dictate the legislative priority of a hostile Congress, a phenomenon beyond the imagination of founding generations. Frequent issuance of executive orders during war or war related emergencies is now supplemented by presidential pre-emption of a legislative field and invitation to Congress to act in his line. The latest move of President Barrack Obama on immigration reform marks the height of this reverse constitutional engineering. 

In a system like the U.S., circumscribed by separation of powers and checks and balances, this type of practice would inevitably draw serious attention from both Congress and the Supreme Court. As is shown later in this paper, it actually and seriously did.

2.2. Ordinances of the President of Bangladesh

Unlike the U.S., ordinance-making power of the President of Bangladesh is a constitutionally settled authority. Article 93 of the Constitution of Bangladesh empowers the President to legislate by promulgating Ordinance. The facial justification offered for this is responding to the urgency of situations requiring immediate actions when Parliament may not be in session and be unable to act promptly. The constitutional limits on the Ordinance power are both procedural and substantive. 

Procedurally, the President may promulgate an Ordinance at any time when Parliament stands dissolved or is not in session, if he is satisfied that circumstances exist which render immediate action necessary. Any Ordinance so made has the same force of law as an Act of Parliament has.  Since the president remains bound by the advice of the prime minister, any satisfaction regarding the necessity of an Ordinance is in fact that of the prime minister. Following its promulgation, every ordinance has to be laid before Parliament at its immediate following meeting. Government lays the Ordinance as a Bill before the House. If passed it becomes an Act. If not acted upon, it dies its natural death after thirty days of its being laid in the table. It may die even earlier if it is disapproved earlier. 

On the level of substance, constitution has put several conditions on the scope of ordinances. As per Article 93(1), an ordinance cannot violate the constitutional supremacy clause  and enact a law which could not be lawfully enacted by Parliament. Constitution cannot be amended by ordinance. Operation of an earlier ordinance cannot be continued by another ordinance. Apart from these, judicial precedents have added some other limitations to the list. An ordinance may not violate a constitutional convention,  impose tax burden  and alter or amend an Act of Parliament. 

The apparently detailed and well structured scheme of ordinance power, however, would not deliver as expected. Rather than being used as a tool of emergency, it unfortunately has been used as ready-before-hand tool to snatch away the legislative power from the legislature itself. During the late 70s and 80s, the legislatures acted as mere rubber stamps whose main job was to legalize rather than legislate. As the table below shows, the military and civilian governments invariably used the ordinance power that undermined the institutional role of parliament:

Parliament/Governments	Act of Parliament*	Presidential Orders/ Ordinances
Revolutionary Government (1971-72)	00	202
1st Parliament (1973-75)	64	90
Three Military Rulers (1975-79)	00	259
2nd Parliament (1979-81)	65	295
4th Military Ruler (1982-86)	00	307
3rd Parliament (1986-88)	25	323
4th Parliament (1988-90)	53	92
5th Parliament (1991-96)	104	121
7th Parliament (1996-00)	170	21
8th Parliament (2001-06)	184	6
Military Backed Government (2006-08)	00	117
9th Parliament (2009-13)	249	23
Source: Bangladesh Parliament; http://www.parliament.gov.bd/index.php/en *Acts of the Parliament are shown as the actual legislative exercise of the legislature. The Acts which were in fact approving presidential ordinances are counted as orders/ordinances.

3. The Scope and Problems of Institutional Restraint

3.1. Separation of Power in the U.S.

The US system of separation of powers makes it obvious for the president pursuing his policy to go along with two other branches of the government. The presidents are most likely to prefer a clear congressional mandate in pursuit of his goals. Presence of an unfriendly Congress, however, sometimes results in ‘unilateral presidency’ inviting the president to issue executive orders on his own volition. This again is the choice of a ‘strategic president’ who wants to see the laws confirm his policies and, at the same time, must ensure that the Congress is not going to override it by a subsequent legislation. He must ensure that he is also in a position to override a possible congressional move through his veto and the Congress in its turn is unable or unlikely to override the veto. This of course, does not mean that presidents do not issue executive orders for strategic reasons even when the Congress is generally receptive to their administrations.

Historically, the Congress has shown a tendency to acquiesce or support executive orders. President’s personal and political linkage with the Congress could also have contributed to this. A glossy reading of the US Constitution will support the impression that it anticipates a visible and persistent alliance between the President and Congress. This may partially be due to inherent institutional and procedural constraints of the Congress as well. As the statistics show, Congress questioned only 36 of around 1,000 executive orders between the years of 1973 and 1997. Only two of these resulted in overriding the orders. 

The President’s alliance with the Supreme Court, on the other hand, is much more ‘informal and limited’. The Court has shown its general preparedness to give way to the will of the President and Congress in statutory cases. Unless felt seriously convicted on principle, the Court has tended to stay out of the President's way and approve the executive orders "of at-best-dubious constitutional authority… [or] issued without specific statutory authority." On clear constitutional grounds, however, the courts held the ground tight. The result is that during the years of 1789 and 1956, the state and federal courts turned down only 16 executive orders. 

Presumably it is the President’s unique position of power and persuasion within the U.S. system of separation of power and checks and balances that puts him in a clear advantage over the other two branches of government. Instances of congressional backing to President Roosevelt’s move for ‘court packing’ and President Nixon’s active role play in congressional move to override the Oregon v. Mitchell through constitutional amendment sufficiently show that president is constitutionally fortuitous to choose and pick between the institutional alliances that may best serve his goal.

3.2. The Fusion of Power in Bangladesh

The doctrine of separation of power has is confirmed by the scheme of the Constitution of Bangladesh, with its inherent lacuna and defects though. Executive power of the Republic lies with the Executive under the prime minister and his cabinet. Legislative power is vested in the Parliament. Though there is no express vesting of judicial power in the judiciary, the Supreme Court has held that it so lies. 

The system of check and balance on the other hand is seriously defective. Parliament may cause the fall of government as the prime minister and his cabinet is collectively responsible to it. Prime Minister holds office during the pleasure of parliament. President appoints the Judges of the Supreme Court in consultation with the prime minister. President removes a judge upon recommendation of a supreme judicial council comprising three senior most judges of the Supreme Court. When an allegation of moral turpitude or violation of constitution is brought against a judge, president convenes the council after consulting the prime minister. The say of parliament is totally missing in both the appointment and removal process. Judiciary, in its turn, exercises the power of judicial review of laws and executive actions. It, however, cannot give a direction to repeal or modify a law. 

Under the present set up and its attendant realities, the doctrine of check and balance appears a mere eye wash. It rather ensures the ‘dominance’ of the executive over the legislature and the judiciary. Two fundamental issues contributing to this are the presence of the so called Articles 48(3) and 70 in the constitution. Article 48(3) holds the president virtually caught in the prime minister’s net. Prime minister’s advice being immune from judicial scrutiny, executive enjoys the last and final say in every affairs of the republic, be it the dissolution of parliament or the appointment and removal of the Supreme Court judges. The gist of Article 70 is that a MP going against the decision of his political leadership runs the risk of losing his seat in Parliament. The Cabinet comprising the most powerful members of the ruling majority is led by an “invincible Prime Minister”. 

As a result, the legislature and executive get virtually converged in one hand. This makes Bangladesh’s separation of power a mere “assignment of powers”. Given the situation, it is obvious that the parliament and judiciary in Bangladesh would employ a significantly less rigorous scale of scrutiny to the exercise of presidential law making power.

4. The Judicial Role Play

4.1. Judicial Review of Executive Orders in the U.S.

Justice Jackson’s structural analysis of presidential law making power in Youngstown stands the most convincing outline of judicial review in the U.S. Jackson articulated three possible scenario an executive order may present. First, the President may act pursuant to an express or implied authorization of Congress. Secondly, he may act in absence of either a congressional grant or prohibition. Thirdly, he may act contrary to the expressed or implied will of Congress. In this first case, executive and legislative powers of the Republic being merged, the presidential authority will be “at its maximum”. Court will support the president by “the strongest of presumptions and the widest of interpretative latitude.” The second scenario constitutes “a zone of twilight” where the allocation of presidential and congressional power remains uncertain. President could overcome the doubt by showing that his predecessors have historically acted in such cases and the Congress usually acquiesced. The third scenario is the greyest where the presidential authority stands “at its lowest ebb.” Here, the president would have to prove that the area concerned is exclusively within his domain and the Congress had nothing to do there. Such an argument running against the “very equilibrium of constitutional system” would invite the most rigorous possible scrutiny.

A Power ‘at its Maximum’ and the theory of Intelligible Delegation

AFL-CIO is good example of the first scenario. Labor unions challenged the legality of President Carter’s Executive Order No. 12092. The Order sought to prescribe some general standards to measure noninflationary wage and price behavior of private firms. The Federal contractors were required to comply with the guidelines with the stake of debarment from federal contracts. These regulations interfered with an ongoing collective bargaining between the United Rubber Workers and several rubber companies. After reaching an agreement on wage issue, the stake holders saw that President Carter’s Order was threatening the company with contract debarment for exceeding the federal guideline. The companies started sliding away from the agreement and a strike began against one of them. The AFL-CIO then challenged the Carter Order claiming that the system of mandatory wage and price controls was in violation of the Council on Wage and Price Stability Act 1974.

Despite an apparently contradictory language in the Price Stability Act, the majority in the Court of Appeals for the District of Columbia held that another Act namely, the Federal Property and Administrative Services Act of 1949 (Procurement Act), authorized the President to issue the Order. The Congress, by using broad terms such as "'economy" and "efficiency" in the Procurement Act, has shown an implied intention to grant the President a broad rule-making power. Power being implied within the law, the question was whether there was tight fit between the ends and means chosen by the President. The majority was convinced that a "sufficiently close nexus" existed between the purpose of ‘economy and efficiency’ and the wage and price guidelines set in the Order. 

The dissenting Judge MacKinnon applied a rather narrow construction test to the statute and found the nexus missing. His reasoning articulated a doctrine of “intelligible delegation” which would require the Congress set adequate standards and guidance for the President seeking to exercise the power. As per the doctrine, any delegation without adequate standards and guidance will be an “unconstitutional delegation” of legislative authority. The ‘Intelligible Delegation’ doctrine is based on the premise that a delegate may not abdicate his authority in the pretext of sub delegation. A congressional delegation of legislative authority in favor of the President must therefore be coupled with prescribed limits, standards and principles which combined would constitute an ‘intelligible delegation’. Later on Chief Justice Taft, also a former President of the U.S., confirmed the formulation in Hampton. 

In judging whether the congressional delegation is an intelligible one and whether the President acted within the delegated authority, the courts adopt the strictest test of interpretation. The court will ensure that the president acts in situations and conditions contemplated by Congress. Initial presumption lies with as to the factual nexus lies in president’s favor of course.

“Zone of Twilight”: From a theory of ‘General Grant’ to the requirement of ‘Ratification’

President’s unilateral move to issue executive order without express authorization or prohibition received the first judicial attention in Re Neagle 135 US 1 (1890). It was a case involving the appointment, by executive order, of an armed bodyguard for the security of Stephen J Field, a Circuit Justice of the Ninth Circuit. He was threatened earlier by one David S. Terry, himself a retired Supreme Court Judge from California. Considering Terry’s declared intention to harm Judge Field, President Benjamin Harrison appointed a federal Marshall named David Neagle as Fields bodyguard by an executive order.

The Order being challenged on a subsequent incident, the Supreme Court resorted to the president’s power of ‘faithful execution of laws’ mentioned in Article II Section 3 of the Constitution. Based on this, the court adopted a ‘general grant’ theory of executive power that would allow the President doing things not expressly authorized by the Constitution or a congressional legislation, if those are felt necessary to enforce the laws of United States. 

Later precedents however did not rely much on the ‘general grant’ theory. In absence of clear authorization, the court rather looked for some form of congressional ratification of an order, either express or by acquiescence. Some however argue that acquiescence should not be readily taken as implied ratification. Since Congress may have multiple reasons for not acting, a better approach would require some positive endorsement. 

The power ‘at its lowest ebb’

President’s unilateral move in violation of express statutory limits would invite the severest test of scrutiny. In Youngstown, the presidential order to seize a private property in that case had no clear statutory authorization. Rather three other statutory policies inconsistent with this order expressly foreclosed any seizure of private property by executive order. Therefore the only way left for the president was to show that his action was within his exclusive domain and beyond the reach of Congress. In his claim of exclusivity, President may rely on the executive power clause, commander-in-chief clause, faithful execution clause, foreign affairs powers, war powers and the so called inherent power of presidency. The Youngstown court however offered a limited reading of all these and struck down the presidential order seizing private industry. 

While commenting on the executive power clause, Justice Jackson rejected the general grant theory of Re Neagle. Pointing to the specific articulations of some powers after a general grant of executive power, Justice Jackson held, “I cannot accept the view that this clause is a grant in bulk of all conceivable executive power but regard it as an allocation to the presidential office of the generic powers thereafter stated.” He was unconvinced with the Commander-in-Chief clause too, “[T]he Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy will constitute him also Commander-in-Chief of the country, its industries and its inhabitants.” Jackson also refused to read the faithful execution clause free of the Fifth Amendment due process which restricts interference with private property. 

On a combined reading of war and foreign affairs powers, Jackson emphasized on the concurrent authority of Congress in declaring war and held, “[N]o doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture. The nebulous argument of inherent power is based on customs and administrative practices. The plea, as Jackson puts it, is for the proposition that “necessity knows no law.” 

4.2. Judicial Review of Ordinances in Bangladesh

The Supreme Court of Bangladesh stands in a marked distinction with the U.S. Supreme Court. It has historically held a deferential view towards the authority and satisfaction of the President. Governor General, the predecessor of presidency, in post-colonial Pakistan was seen as the residuum of the British Crown. Interestingly, while the British Crown itself yielded its authority to the Cabinet, early republic of Pakistan was obsessed with the excellence of Her Majesty’s reign. Rise of military dictatorships in the later days of Pakistan only strengthened the belief system. Ceding from Pakistan, Bangladesh chose a parliamentary system. The legacy of Pakistani presidentialism and rise of interventionist military, however, had a profound impact on the psyche of the legislature and judiciary. Legislative and judicial timidity of the presidentialist era (1970s and 80s) unfortunately continued during the democratic era of 1990s and onwards. The resultant position is that the Court starts with a reluctance to go deep into the bona fide of a presidential satisfaction.

The interpretative approach of the Supreme Court of Bangladesh follows two major tracks. A presidential satisfaction may be either subjective or objective. If the satisfaction qualifies as a subjective one, the resultant Ordinance would not be questionable before the court of law. An objective satisfaction requirement would invite the court to go beyond the professed necessity of an ordinance. While the authoritarian martial law rulers reaped the fruit of subjectivity, the democratically elected presidents have been asked to be objective. Shahriar Rashid Khan v. Bangladesh represents a glaring example. 

The High Court Division of the Supreme Court in Shahriar Rashid ventured to question the satisfaction of a president as the president. Yet it was not ready to question the satisfaction of a president acting as the “martial law administrator”. The Appellate Division confirmed the position by holding, “The Ordinance was made by him wearing a different cap, that of the President under the Constitution. So there was no extra magic in the Ordinance.” 

Subjective Satisfaction doctrine

The doctrine of subjective satisfaction rests on an authoritative assertion of presidency. Relying on the president’s position of guardianship of the republic and role of chief executive and chief legislator, it seeks to immunize the presidential mind from judicial scrutiny. Based on this, the Supreme Court in Kudrat-E-Elahi Panir v. Bangladesh refused to look into an allegation of mala fide and colorable exercise of power. Justice Mustafa Kamal equated the president’s ordinance power with the parliament’s legislative power and stood in favor of “presuming” a bona fide on the president’s part. Since the court presumes institutional bona fide in legislative business on the part of the legislature, so should be the case with presidential ordinances. For Mustafa Kamal, the motives that may impel an ordinance would be “really irrelevant.” The sole question to be asked is whether the President has necessary authority to issue the ordinance in question. Once the authority is there, the question of mala fide or colorability “does not arise at all.” 

There is an argument that the Supreme Court in Kudrat E Elahi misplaced the Ordinance making power in constitutional parlance. Ordinance making power’s equation with legislative power was wrong. In Ordinances, it is not the satisfaction of Parliament as an institution that plays the role. Rather it is the personal satisfaction of a president acting on advice of the prime minister that matters. On this analogy, ordinance making power should be placed within ring of executive power and hence, as per the tenet of Administrative Law, the question of mala fide should be probed into. 

Objective Satisfaction doctrine

Objective satisfaction doctrine stems from the structural and principled reading of the constitution which is undeniably an instrument of limited government. It would require a legitimate and reasonable purpose behind an ordinance and a tight fit between the ends professed and means chosen. The post 1990 court has increasingly relied on this doctrine. Most important precedent of this era is Bangladesh Italian Marble Works Ltd v. Government of Bangladesh and Others, popularly known as the Moon Cinema case. Justice A.B.M Khairul Haque was straight forward in striking down the Shahriar Rashid and all the rules, orders and ordinances issued by the military dictators of late 1970s and 80s. The military rulers being unlawful usurpers they had no authority whatsoever to promulgate any of those. Even if their presidencies were considered lawful, their satisfaction could not be more sacrosanct than the constitution itself. As Haque puts it, “[T]he Constitution is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men at all times, and under all circumstances”. 

Idrisur Rahman v. Bangladesh dealt with an emergency time ordinance of the President. The government tried to justify the ordinance by relying on the doctrine of political question. Political question, however, attracted discomfort of the court on an earlier occasion. Outright rejecting the argument this time, the Court held that if any ordinance is challenged with an allegation that the circumstances specified in Article 93 of the constitution did not exist at the time of promulgating the Ordinance, there could be no reason for the Supreme Court to refuse to look into the case. The court must see that there exist circumstances that may require urgent action and there was proportionality between the ordinance and the professed necessity. 

Pirjada Syed Shariat Ullah v. Bangladesh decided within the same time frame confirms that ordinance power is a limited power pre-conditioned by seriousness of the situation. Therefore, the president must be “objectively satisfied” as to the special situation, necessity of immediate action, possible irreparable injury arising out of inaction. 

5. Conclusion

While the recent history of the U.S. shows a rise in executive legislation, Bangladesh experiences a sharp decline in ordinance frequency. The trend however yields clearly opposite results for the two systems. The structural pillars of the U.S. political system comprising a sovereign Congress and an independent judiciary work as effective buffers and neutralize the slightest threat of presidential dictatorship. The rise of executive legislation there may attract criticism of “unilateral presidency” but no fear. On the other hand, the declining trend in Bangladesh serves to camouflage the reality. Presidents are issuing less number of ordinances does not necessarily mean that parliament is exercising legislative power more frequently. The governments simply noted the criticism and taken the other way of doing things. While the legislative practice of a British parliamentary system allows a cabinet to get the parliament pass whatever laws it wants, the use of presidential ordinances apparently makes no sense. Buttressed with a seriously incapacitated legislature and a generally timid but occasionally bold judiciary, Bangladesh’s fear of unlimited presidentialism may have gone but not that of the prime minister’s dictatorship. Framers of the constitution of U.S. constitution did not contemplate presidential law making and hence the constitution is totally silent on this. Framers of the constitution of Bangladesh contemplated the presidential law making and hence they provided multiple restraints on the exercise of power. Evidently the first one works better than the second in restraining possible executive omnipotence. Art of constitution is after all in the system it devises not in the niceties of its languages.