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
The United States Constitution does not have a provision that explicitly permits the use of executive orders. ArticleII, Section1, Clause1 of the Constitution simply states: "The executive Power shall be vested in a President of the United States of America." Sections2 and3 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]
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][11]
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.[12]
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.[13] 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".[14] That court functioned during the military occupation of Louisiana during the American Civil War, and Lincoln also used Executive Order1 to appoint Charles A. Peabody as judge and designate the salaries of the court's officers.[13]
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.
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.[16]
Franklin Roosevelt
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 3,721 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.[17]
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.
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 GeneralJohn 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.[20]
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.[21]
Legal conflicts
In 1935, the Supreme Court overturned five of Franklin Roosevelt's executive orders (6199, 6204, 6256, 6284a and 6855).[22][23]
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.[26]
On July 30, 2014, the US House of Representatives approved a resolution authorizing Speaker of the HouseJohn 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[27] 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".[28] The suit was filed in the US District Court for the District of Columbia on November 21, 2014.[29]
The degree to which the president has the power to use executive orders to set policy for independent federal agencies is disputed.[32] Many orders specifically exempt independent agencies, but some do not.[33]Executive Order 12866 has been a particular matter of controversy; it requires cost-benefit analysis for certain regulatory actions.[34][35][36][37]
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.[38][39][40][41][42]
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
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)".[43] 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.[44]
In the United States government, independent agencies are agencies that exist outside the federal executive departments and the Executive Office of the President. In a narrower sense, the term refers only to those independent agencies that, while considered part of the executive branch, have regulatory or rulemaking authority and are insulated from presidential control, usually because the president's power to dismiss the agency head or a member is limited.
The federal government of the United States is the common government of the United States, a federal republic located primarily in North America, comprising 50 states, five major self-governing territories, several island possessions, and the federal district of Washington, D.C., where the majority of the federal government is based.
A decree is a legal proclamation, usually issued by a head of state, judge, royal figure, or other relevant authorities, according to certain procedures. These procedures are usually defined by the constitution, Legislative laws, or customary laws of a government.
Separation of powers is a political doctrine originating in the writings of Charles de Secondat, Baron de Montesquieu in The Spirit of the Laws, in which he argued for a constitutional government with three separate branches, each of which would have defined authority to check the powers of the others. This philosophy heavily influenced the United States Constitution, according to which the Legislative, Executive, and Judicial branches of the United States government are kept distinct in order to prevent abuse of power. The American form of separation of powers is associated with a system of checks and balances.
United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), was a decision of the United States Supreme Court concerning the foreign affairs powers of the president of the United States. It held that the President, as the nation's "sole organ" in international relations, was therefore innately vested with significant powers over foreign affairs, far exceeding those permitted in domestic matters or accorded to the U.S. Congress. The Court's majority reasoned that although the U.S. Constitution does not explicitly provide for such authority, the powers are implicit in the President's constitutional role as commander-in-chief and head of the executive branch.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), also commonly referred to as the Steel Seizure Case or the Youngstown Steel case, was a landmark United States Supreme Court decision that limited the power of the president of the United States to seize private property. The case served as a check on the most far-reaching claims of executive power at the time and signaled the Court's increased willingness to intervene in political questions.
The powers of the president of the United States include those explicitly granted by Article II of the United States Constitution as well as those granted by Acts of Congress, implied powers, and also a great deal of soft power that is attached to the presidency.
A signing statement is a written pronouncement issued by the President of the United States upon the signing of a bill into law. They are usually printed in the Federal Register's Compilation of Presidential Documents and the United States Code Congressional and Administrative News (USCCAN). The statements offer the president's view of the law or laws created by the bill.
The National Emergencies Act (NEA) is a United States federal law passed to end all previous national emergencies and to formalize the emergency powers of the President.
The Report of the Special Committee on the Termination of the National Emergency, also known as Senate Report 93-549, was a document issued by the "Special Committee on the Termination of the National Emergency" of the 93rd Congress. Its purpose was to discuss and address the 40-year-long national emergency that had been in effect in the United States since 1933. During the continued emergency, Congress voted to transfer powers from itself to the President. The debate to end long-running national emergencies ended in 1976 with the National Emergencies Act, which rescinded the president's authority under the prior emergencies and established an expiration period on future declared emergencies.
A presidential memorandum is a type of directive issued by the president of the United States to manage and govern the actions, practices, and policies of the various departments and agencies found under the executive branch of the United States government. It has the force of law and is usually used to delegate tasks, direct specific government agencies to do something, or to start a regulatory process. There are three types of presidential memoranda: presidential determination or presidential finding, memorandum of disapproval, and hortatory memorandum.
The Administrative Procedure Act (APA), Pub. L.79–404, 60 Stat. 237, enacted June 11, 1946, is the United States federal statute that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations, and it grants U.S. federal courts oversight over all agency actions. According to Hickman & Pierce, it is one of the most important pieces of United States administrative law, and serves as a sort of "constitution" for U.S. administrative law.
Primary legislation and secondary legislation are two forms of law, created respectively by the legislative and executive branches of governments in representative democracies. Primary legislation generally consists of statutes, also known as 'acts', that set out broad principles and rules, but may delegate specific authority to an executive branch to make more specific laws under the aegis of the principal act. The executive branch can then issue secondary legislation, creating legally enforceable regulations and the procedures for implementing them.
Presidential reorganization authority is a term used to refer to a major statutory power that has sometimes been temporarily extended by the United States Congress to the President of the United States. It permits the president to divide, consolidate, abolish, or create agencies of the U.S. federal government by presidential directive, subject to limited legislative oversight. First granted in 1932, presidential reorganization authority has been extended to nine presidents on 16 separate occasions. As of 2024, it was most recently granted to Ronald Reagan.
In the United States, a presidential directive, or executive action, is a written or oral instruction or declaration issued by the president of the United States, which may draw upon the powers vested in the president by the Constitution of the United States, statutory law, or, in certain cases, congressional and judicial acquiescence.
Presidential Emergency Action Documents (PEADs) are draft classified executive orders, proclamations, and messages to Congress that are prepared for the President of the United States to exercise or expand powers in anticipation of a range of emergency hypothetical worst-case scenarios, so that they are ready to sign and put into effect the moment one of those scenarios comes to pass. They are defined by the Federal Emergency Management Agency as the "Final drafts of Presidential messages, proposed legislation proclamations, and other formal documents, including DOJ-issued cover sheets addressed to the President, to be issued in event of a Presidentially-declared national emergency."
↑ 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)
↑ "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
This page is based on this Wikipedia article Text is available under the CC BY-SA 4.0 license; additional terms may apply. Images, videos and audio are available under their respective licenses.
