Federal administrative instruction issued by the president of the United States
In the United States, an
executive order
is a
directive
by the
president of the United States
that manages operations of the
federal government
.
[1]
The legal or constitutional basis for executive orders has multiple sources.
Article Two of the United States Constitution
gives presidents broad executive and enforcement authority to use their discretion to determine how to enforce the law or to otherwise manage the resources and staff of the executive branch. The ability to make such orders is also based on expressed or implied
Acts of Congress
that delegate to the president some degree of discretionary power (
delegated legislation
).
[2]
The vast majority of executive orders are proposed by federal agencies before being issued by the president.
[3]
Like both legislative statutes and the regulations promulgated by government agencies, executive orders are subject to
judicial review
and may be overturned if the orders lack support by statute or the Constitution. Some policy initiatives require approval by the legislative branch, but executive orders have significant influence over the internal affairs of government, deciding how and to what degree legislation will be enforced, dealing with emergencies, waging wars, and in general fine-tuning policy choices in the implementation of broad statutes. As the head of state and head of government of the United States, as well as commander-in-chief of the United States Armed Forces, only the president of the United States can issue an executive order.
Presidential executive orders, once issued, remain in force until they are canceled, revoked, adjudicated unlawful, or expire on their terms. At any time, the president may revoke, modify or make exceptions from any executive order, whether the order was made by the current president or a predecessor. Typically, a new president reviews in-force executive orders in the first few weeks in office.
Basis in the United States Constitution
[
edit
]
The
United States Constitution
does not have a provision that explicitly permits the use of executive orders.
Article
II
, Section
1,
Clause
1
of the Constitution simply states: "The executive Power shall be vested in a President of the United States of America." Sections
2 and
3 describe the various powers and duties of the president, including "He shall take care that the Laws be faithfully executed".
[4]
The
U.S. Supreme Court
has held
[5]
that all executive orders from the president of the United States must be supported by the Constitution, whether from a clause granting specific power, or by Congress delegating such to the executive branch.
[6]
Specifically, such orders must be rooted in
Article II of the US Constitution
or enacted by the Congress in
statutes
. Attempts to block such orders have been successful at times, when such orders either exceeded the authority of the president or could be better handled through legislation.
[7]
The
Office of the Federal Register
is responsible for assigning the executive order a sequential number, after receipt of the signed original from the White House and printing the text of the executive order in the daily
Federal Register
and eventually in
Title
3 of the
Code of Federal Regulations
.
[8]
History and use
[
edit
]
With the exception of
William Henry Harrison
, all presidents since
George Washington
in 1789 have issued orders that in general terms can be described as executive orders. Initially, they took no set form and so they varied as to form and substance.
[9]
The first executive order was issued by Washington on June 8, 1789; addressed to the heads of the federal departments, it instructed them "to impress [him] with a full, precise, and distinct general idea of the affairs of the United States" in their fields.
[10]
According to political scientist Brian R. Dirck, the most famous executive order was by President
Abraham Lincoln
when he issued the
Emancipation Proclamation
on September 22, 1862, which in part contained explicit directions to the Army, the Navy, and other Executive departments:
The Emancipation Proclamation was an executive order, itself a rather unusual thing in those days. Executive orders are simply presidential directives issued to agents of the executive department by its boss.
[11]
Until the early 1900s, executive orders were mostly unannounced and undocumented, and seen only by the agencies to which they were directed.
That changed when the
US Department of State
instituted a
numbering scheme
in 1907, starting retroactively with United States Executive Order 1, issued on October 20, 1862, by President Lincoln.
[12]
The documents that later came to be known as "executive orders" apparently gained their name from that order issued by Lincoln, which was captioned "Executive Order Establishing a Provisional Court in Louisiana".
[13]
That court functioned during the military occupation of
Louisiana
during the
American Civil War
, and Lincoln also used Executive Order
1 to appoint
Charles A. Peabody
as judge and designate the salaries of the court's officers.
[12]
President
Harry Truman
's Executive Order 10340 placed all the country's
steel mills
under federal control, which was found invalid in
Youngstown Sheet & Tube Co. v. Sawyer
, 343 US 579 (1952), because it attempted to make law, rather than to clarify or to further a law put forth by the Congress or the Constitution. Presidents since that decision have generally been careful to cite the specific laws under which they act when they issue new executive orders; likewise, when presidents believe that their authority for issuing an executive order stems from within the powers outlined in the Constitution, the order instead simply proclaims "under the authority vested in me by the Constitution".
Wars have been fought upon executive order, including the 1999
Kosovo War
during President
Bill Clinton
's second term in office; however, all such wars have also had authorizing resolutions from Congress. The extent to which the president may exercise military power independently of Congress and the scope of the
War Powers Resolution
remain unresolved constitutional issues, but all presidents since the passage of the resolution have complied with its terms, while also maintaining that they are not constitutionally required to do so.
Harry S. Truman issued 907 executive orders, with 1,081 orders made by
Theodore Roosevelt
, 1,203 orders made by
Calvin Coolidge
, and 1,803 orders made by
Woodrow Wilson
.
Franklin D. Roosevelt
has the distinction of making a record 3,522 executive orders.
[14]
In 2021, President Joseph Biden issued 42 executive orders in the first 100 days of his presidency, more than any other president since Harry Truman.
[15]
Franklin Roosevelt
[
edit
]
Before 1932, uncontested executive orders had determined such issues as national mourning on the death of a president and the lowering of flags to half-staff.
President
Franklin Roosevelt
issued the first of his 3,522 executive orders on March 6, 1933, declaring a
bank holiday
, and forbidding banks to release
gold coin
or
bullion
.
Executive Order 6102
forbade the hoarding of gold coin, bullion and
gold certificates
. A further executive order required all newly mined domestic gold be delivered to the Treasury.
[16]
By Executive Order 6581, the president created the
Export-Import Bank of the United States
. On March 7, 1934, he established the
National Recovery Review Board
(Executive Order 6632). On June 29, the president issued Executive Order 6763 "under the authority vested in me by the Constitution", thereby creating the
National Labor Relations Board
.
In 1934, while
Charles Evans Hughes
was
Chief Justice of the United States
(the period being known as the
Hughes Court
), the Court found that the
National Industrial Recovery Act
(NIRA) was unconstitutional. The president then issued Executive Order 7073 "by virtue of the authority vested in me under the said
Emergency Relief Appropriation Act of 1935
", re-establishing the
National Emergency Council
to administer the functions of the NIRA in carrying out the provisions of the Emergency Relief Appropriations Act. On June 15, he issued Executive Order 7075, which terminated the NIRA and replaced it with the Office of Administration of the
National Recovery Administration
.
[17]
In the years that followed, Roosevelt replaced outgoing justices of the Supreme Court with people more in line with his views:
Hugo Black
,
Stanley Reed
,
Felix Frankfurter
,
William O. Douglas
,
Frank Murphy
,
Robert H. Jackson
and
James F. Byrnes
. Historically, only George Washington has had equal or greater influence over Supreme Court appointments (as he chose all its original members).
Justices Frankfurter, Douglas, Black, and Jackson dramatically checked presidential power by invalidating the executive order at issue in
Youngstown Sheet & Tube Co. v. Sawyer
: in that case Roosevelt's successor,
Harry S. Truman
, had ordered private steel production facilities seized in
Executive Order 10340
to support the
Korean War
effort: the Court held that the executive order was not within the power granted to the president by the Constitution.
Table of U.S. presidents using executive orders
[
edit
]
Reaction
[
edit
]
Large policy changes with wide-ranging effects have been implemented by executive order, including the
racial integration
of the
armed forces
under President Truman.
Two extreme examples of an executive order are Franklin Roosevelt's
Executive Order 6102
"forbidding the hoarding of gold coin, gold bullion, and gold certificates within the continental United States", and
Executive Order 9066
, which delegated military authority to remove any or all people in a military zone (used to target
Japanese Americans
, non-citizen
Germans
, and non-citizen
Italians
in certain regions). The order was then delegated to
General
John L. DeWitt
, and it subsequently paved the way for all Japanese-Americans on the
West Coast
to be sent to
internment camps
for the duration of
World War II
.
President
George W. Bush
issued
Executive Order 13233
in 2001, which restricted public access to the papers of former presidents. The order was criticized by the
Society of American Archivists
and other groups, who say it "violates both the spirit and letter of existing U.S. law on access to presidential papers as clearly laid down in 44
USC
2201?07", and adding that the order "potentially threatens to undermine one of the very foundations of our nation". President
Barack Obama
subsequently revoked Executive Order 13233 in January 2009.
[19]
The Heritage Foundation
has accused presidents of abusing executive orders by using them to make laws without Congressional approval and moving existing laws away from their original mandates.
[20]
Legal conflicts
[
edit
]
In 1935, the Supreme Court overturned five of Franklin Roosevelt's executive orders (6199, 6204, 6256, 6284 and 6855).
Executive Order 12954
, issued by President
Bill Clinton
in 1995, attempted to prevent the federal government from contracting with organizations that had
strike-breakers
on the payroll: a federal appeals court ruled that the order conflicted with the
National Labor Relations Act
and overturned the order.
[21]
[22]
Congress has the power to overturn an executive order by passing legislation that invalidates it, and can also refuse to provide funding necessary to carry out certain policy measures contained with the order or legitimize policy mechanisms.
In the case of the former, the president retains the power to veto such a decision; however, Congress may override a veto with a two-thirds majority to end an executive order. It has been argued that a Congressional override of an executive order is a nearly impossible event, because of the
supermajority
vote required, and the fact that such a vote leaves individual lawmakers vulnerable to political criticism.
[23]
On July 30, 2014, the
US House of Representatives
approved a resolution authorizing
Speaker of the House
John Boehner
to sue President Obama over claims that he exceeded his executive authority in changing a key provision of the
Affordable Care Act
("Obamacare") on his own
[24]
and over what Republicans claimed had been "inadequate enforcement of the health care law", which Republican lawmakers opposed. In particular, Republicans "objected that the
Obama administration
delayed some parts of the law, particularly the mandate on employers who do not provide health care coverage".
[25]
The suit was filed in the US District Court for the District of Columbia on November 21, 2014.
[26]
Part of President
Donald Trump
's executive order
Protecting the Nation from Foreign Terrorist Entry into the United States
, which temporarily banned entry to the US of citizens of seven Muslim-majority countries, including for permanent residents,
was stayed by a federal court
on January 28, 2017.
[27]
However, on June 26, 2018, the US Supreme Court overturned the lower court order in
Trump v. Hawaii
and affirmed that the executive order was within the president's constitutional authority.
[28]
The degree to which the president has the power to use executive orders to set policy for
independent federal agencies
is disputed.
[29]
Many orders specifically exempt independent agencies, but some do not.
[30]
Executive Order 12866
has been a particular matter of controversy; it requires cost-benefit analysis for certain regulatory actions.
[31]
[32]
[33]
[34]
State executive orders
[
edit
]
Executive orders issued by state
governors
are not the same as statutes passed by state legislatures. State executive orders are usually based on existing constitutional or statutory powers of the governor and do not require any action by the state legislature to take effect.
[35]
[36]
[37]
[38]
[39]
Executive orders may, for example, demand budget cuts from
state government
when the
state legislature
is not in session, and economic conditions take a
downturn
, thereby decreasing tax revenue below what was forecast when the budget was approved. Depending on the
state constitution
, a governor may specify by what percentage each
government agency
must reduce and may exempt those that are already particularly underfunded or cannot put long-term expenses (such as
capital expenditures
) off until a later
fiscal year
. The governor may also call the legislature into
special session
.
There are also other uses for gubernatorial executive orders. In 2007, for example,
Sonny Perdue
, the governor of Georgia, issued an executive order for all
its state agencies
to reduce water use during a major
drought
. The same was demanded of
its counties
' water systems as well, but it was unclear whether the order would have the force of law.
Presidential proclamation
[
edit
]
According to political expert Phillip J. Cooper, a
presidential proclamation
"states a condition, declares a law and requires obedience, recognizes an event or triggers the implementation of a law (by recognizing that the circumstances in law have been realized)".
[40]
Presidents define situations or conditions on situations that become legal or economic truth. Such orders carry the same force of law as executive orders, the difference between being that executive orders are aimed at those inside government, but proclamations are aimed at those outside government.
The administrative weight of those proclamations is upheld because they are often specifically authorized by congressional statute, making them "delegated unilateral powers". Presidential proclamations are often dismissed as a practical presidential tool for policy making because of the perception that proclamations are largely ceremonial or symbolic in nature. However, the legal weight of presidential proclamations suggests their importance to presidential governance.
[41]
See also
[
edit
]
References
[
edit
]
- ^
"What is an Executive Order?"
.
Insights on Law and Society
. Vol. 17, no. 1. American Bar Association. Fall 2016.
ISSN
1531-2461
. Retrieved
January 1,
2018
.
- ^
John Contrubis,
Executive Orders and Proclamations
, CRS Report for Congress #95-722A, March 9, 1999, Pp. 1-2
- ^
Rudalevige, Andrew (2021).
By Executive Order: Bureaucratic Management and the Limits of Presidential Power
. Princeton University Press.
ISBN
978-0-691-20371-3
.
- ^
SCOTUS
,
Myers v. United States
, 272 U.S. 52 (1926), Majority Opinion.
- ^
Southern Reporter: Cases argued and determined in the courts of Alabama, Florida, Louisiana, Mississippi
. West Publishing Company. 1986. p. 723.
- ^
Antieau, Chester James; Rich, William J. (1997).
Modern Constitutional Law
. Vol. 3. West Group. p. 528.
ISBN
978-0-7620-0194-1
.
- ^
Wozencraft, Frank M. (1971).
"OLC: the Unfamiliar Acronym"
.
American Bar Association Journal
.
57
(January): 33 at 35.
ISSN
0747-0088
.
- ^
President of the United States
(August 15, 2016).
"Executive Orders"
.
archives.gov
.
Office of the Federal Register
.
This article incorporates
public domain material
from websites or documents of the
National Archives and Records Administration
.
- ^
93rd Cong., 2nd sess. (1974).
Executive Orders in Times of War and National Emergency: Report of the Special Committee on National Emergencies and Delegated Emergency Powers, United States Senate
. U.S. Govt. Print. Off. p. 23.
{{
cite book
}}
: CS1 maint: numeric names: authors list (
link
)
- ^
DiBacco, Thomas V. (August 14, 2014).
"DiBACCO: George Washington had a pen, but no phone, for executive orders"
.
The Washington Times
. Archived from
the original
on May 14, 2016
. Retrieved
February 4,
2017
.
- ^
Brian R. Dirck (2007).
The Executive Branch of Federal Government: People, Process, and Politics
. ABC-CLIO. p. 102.
- ^
a
b
Lord, Clifford et al.
Presidential Executive Orders
, p. 1 (Archives Publishing Company, 1944).
- ^
Relyea, Harold C. (November 26, 2008).
"Presidential Directives: Background and Overview"
(PDF)
.
Congressional Research Service
. p. 1. Order Code 98-611 GOV.
Archived
(PDF)
from the original on October 22, 2020 – via Federation Of American Scientists.
- ^
"Executive Orders"
.
The American Presidency Project
. Retrieved
October 9,
2022
.
- ^
Breslow, Jason (April 27, 2021).
"Biden's 1st 100 Days: A Look By The Numbers"
.
NPR
. Retrieved
April 29,
2021
.
he's far outpacing them on executive orders. Biden has issued 42 to date, more than any president going back to Harry Truman
- ^
a
b
c
Gerhard Peters.
"The American Presidency Project / Executive Orders"
. Retrieved
August 26,
2015
.
- ^
American Presidency Project,
Executive Order 7075
(May 29, 2009).
- ^
a
b
c
d
"Executive Orders"
.
Federal Register
. Retrieved
January 21,
2021
.
- ^
"Executive Order 13489 of January 21, 2009 ? Presidential Records"
. Archived from
the original
on January 22, 2009
. Retrieved
January 22,
2009
.
,
Federal Register
publication page and date: 74
FR
4669
, January 26, 2009.
- ^
Gaziano, Todd F. (February 21, 2001).
"The Use and Abuse of Executive Orders and Other Presidential Directives"
.
Legal Memorandum #2
.
The Heritage Foundation
. Archived from
the original
on October 19, 2008
. Retrieved
October 11,
2008
.
- ^
Catherine Edwards, "Emergency Rule, Abuse of Power?"
Insight on the News
, August 23, 1999, p. 18
- ^
"
Chamber of Commerce of the United States
, et al, v. Reich, 74 F.3d 1322 (D.C. Cir. 1996)"
. Public.Resource.org
. Retrieved
November 7,
2014
.
- ^
Harold Hongju Koh
,
The National Security Constitution: Sharing Power after the Iran-Contra Affair
, 1990, p. 118?19
- ^
Deirdre Walsh,
"GOP-led House authorizes lawsuit against Obama"
.
CNN
, July 30, 2014
- ^
Michael McAuliff and Sam Levine,
"House Authorizes Lawsuit Against President Obama"
Huff Post: Politics
, July 30, 2014,
- ^
Parker, Ashley (November 21, 2014).
"House G.O.P. Files Lawsuit in Battling Health Law"
.
The New York Times
.
Archived
from the original on January 30, 2024.
- ^
Patel, Nilay (January 28, 2017).
"Federal court halts Trump's immigration ban"
.
The Verge
. Retrieved
January 28,
2016
.
- ^
"
Trump, President of the United States, Et Al v. Hawaii Et Al
", U.S. Supreme Court Docket No. 17-965, Argued April 25, 2018 – Decided June 26, 2018.
- ^
Dan Bosch (May 29, 2020).
"The Administration's View of Its Ability to Direct Independent Agencies"
.
AAF
.
Archived
from the original on July 5, 2023.
- ^
Cass R. Sunstein; Adrian Vermeul (2021).
"Presidential Review: The President's Statutory Authority over Independent Agencies"
(PDF)
.
Georgetown Law Journal
.
109
: 637?664.
Archived
(PDF)
from the original on January 17, 2024.
- ^
Copeland CW. (2013). "
Economic Analysis and Independent Regulatory Agencies
".
Administrative Conference of the United States
.
- ^
"Benefit-Cost Analysis at Independent Regulatory Agencies"
.
Administrative Conference of the United States
.
Archived
from the original on December 1, 2022.
- ^
Clark Nardinelli; Susan E. Dudley (February 3, 2021).
"Extending Executive Order 12866 to Independent Regulatory Agencies"
.
Regulatory Studies Center
. Society for Benefit-Cost Analysis.
Archived
from the original on July 24, 2023.
- ^
"Independent Regulatory Agency"
.
Glossary of Regulatory Jargon
. The Regulatory Group. 2002.
- ^
About Executive Orders of the State of Colorado
- ^
About Executive Orders of the State of Georgia
- ^
About Executive Orders of the State of Washington
- ^
About Executive Orders of the State of Florida
- ^
About Executive Orders of the State of Utah
- ^
Phillip J. Cooper. 2002.
By Order of The President
. University of Kansas Press. Page 116.
- ^
Presidential Proclamations Project
, University of Houston, Political Science Dept.
Further reading
[
edit
]
- Bush, Ann M., "Executive Disorder: The Subversion of the United States Supreme Court, 1914-1940" [Amazon], 2010.
- Mayer, Kenneth R.,
With the Stroke of a Pen: Executive Orders and Presidential Power
, Princeton University Press, 2002.
- Warber, Adam L.,
Executive Orders and the Modern Presidency: Legislating from the Oval Office
, Lynne Rienner Publishers, 2006.
External links
[
edit
]