Executive orders
Executive orders are formal directives issued by the President of the United States to manage the operations of the federal government. These orders are numbered for reference and do not require congressional approval, making them distinct from traditional legislation. However, they must derive their authority from the U.S. Constitution or existing laws, preventing arbitrary or whimsical actions. The practice of issuing executive orders dates back to George Washington, with presidents having issued over fourteen thousand since then. The use of executive orders is often debated, with critics arguing that they enable presidents to circumvent congressional oversight, while supporters believe they are a legitimate exercise of executive power. Various forms of executive actions also exist, including presidential memoranda and proclamations, each carrying different levels of authority. Courts can intervene to block executive orders if deemed unconstitutional, as seen in notable cases involving presidents from Truman to Trump. Overall, executive orders serve as a significant tool for presidents to implement policies and govern effectively.
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Executive orders
Executive orders are written directives that presidents of the United States issue to effect some action in the federal government. The orders are consecutively numbered documents that presidents must sign to activate. Executive orders are not traditional laws, as they do not require congressional approval and Congress cannot block them. However, executive orders must derive from either the US Constitution or laws Congress has passed. The orders may not create arbitrary new laws.
The issue of executive orders is somewhat controversial in the modern United States. Critics claim that presidents issue the orders simply to impose their legal will on the US government without having to pass the directives through Congress. Another point of contention is that the Constitution does not explicitly grant presidents the privilege of issuing executive orders. Article II of the document bestows presidents only with "executive power." Nonetheless, presidents—beginning with George Washington—have issued over fourteen thousand executive orders since 1789.
Background
Article II of the US Constitution, which created the executive branch of the US government upon taking effect in 1789, does not specifically mention the power of US presidents to issue executive orders. The first sentence of the article states that presidents of the United States hold executive power. The phrase itself is not explained, but the remainder of Article II, along with other sections of the Constitution, describes the president's powers in more detail.
The only legislative authority that the Constitution distinctly assigns to the president is the ability to sign bills into law or to veto, or reject, bills by sending them back to Congress for further debate. These prescriptions were meant to ensure that Congress held more power in the US government than the president, whom the framers of the Constitution wanted to prevent from becoming too powerful.
In 1789, however, Washington became the first US president to assume the power of issuing executive orders. Soon after beginning his first term in office that year, Washington wrote letters to the leaders of several government departments requesting descriptions of the status of the US government. Washington needed to educate himself on the nature of US politics, economics, and society so he could more effectively govern the country. Washington's request is considered the first presidential executive order. Washington issued a total of eight executive directives during his presidency. One of these, a less formal action known as a presidential proclamation rather than an executive order, named Thursday, November 26, 1789, as a national day of thanks—a holiday we now celebrate as Thanksgiving.
Presidents after Washington continued to issue executive orders, though such directives were not actually known by that name until the administration of President Abraham Lincoln in the early 1860s. Presidents who served during the first several decades of the nineteenth century were fairly conservative in their use of executive orders, but the number of executive orders each president issued gradually increased over time.
Presidents John Adams and James Madison issued one order each, whereas Lincoln issued forty-eight. In the early twentieth century, President Theodore Roosevelt became the first president to issue more than one thousand executive orders. President Franklin Roosevelt surpassed all his predecessors during his tenure in the 1930s and 1940s, when he published more than 3,700 executive orders. Executive orders remained popular among US presidents into the twenty-first century.
Overview
Executive orders are written commands that presidents must sign before they are published. The orders are numbered chronologically so they can be easily referenced later (though the federal government did not begin numbering them until 1907). Executive orders are published in the Federal Record, the journal of the US federal government. The orders are not laws in the traditional sense because Congress does not have to approve them. Rather, they are classified as rules and regulations of the executive branch of government. The orders and other such rules are codified and published in the Code of Federal Regulations.
Executive orders must extend from existing law present either in the Constitution or in legislation Congress already has passed. This prevents presidents from becoming whimsical or authoritarian with their orders. Congress cannot stop presidents from issuing executive orders because they are not actually laws. However, lawmakers can take measures to make implementing the orders difficult. An example is passing legislation to eliminate federal funding that an executive order would otherwise have used.
Presidents are usually the only individuals who can overturn previously issued executive orders. Federal courts, including the US Supreme Court, can block executive orders they deem unconstitutional. In 1952, the court blocked President Harry Truman's order to impose federal control on all US steel mills. The court blocked a 1995 order by President Bill Clinton on the grounds that it violated the National Labor Relations Act. Several of President Donald Trump's executive orders have been blocked by the court, including his first attempt at a travel ban in 2017.
Executive orders are grouped with two other types of executive actions: presidential memoranda and presidential proclamations. Executive orders carry the most formal authority. A 1942 executive order by Franklin Roosevelt created internment camps for Japanese Americans. In 1984, President Ronald Reagan issued an executive order that outlawed the use of federal funds for foreign organizations that provided abortion counseling. Clinton overturned this order in 1993. President George W. Bush reinstated the order in 2001. President Barack Obama overturned it again in 2009, and President Donald Trump reinstated it in 2017. The order was overturned again in 2021 by President Joe Biden.
Presidential memoranda are less formal counterparts of executive orders. They hold as much authority as executive orders but take the form of letters and do not require official numbering or other organizational features. For example, Trump used a presidential memorandum in January 2017 to place White House counselor and strategist Steve Bannon on the White House National Security Council. Three months later, Trump used another memorandum to remove Bannon from the council. The same year, he changed the national security directives to national security presidential memorandum.
Finally, presidential proclamations declare that the federal government will recognize certain conditions. Proclamations generally carry no legal authority. Proclamations are used to create new national monuments, order American flags to fly at half-staff for people who have died, or honor particular groups of Americans on a given week of the year. Proclamations are also used to grant presidential pardons. Unusually, Trump used a presidential proclamation in 2017 to ban people from certain countries from entering the United States, after two executive orders to this effect were blocked by the courts. More typical, ceremonial uses of proclamations can also have a significant practical impact at times, such as when Trump issued a proclamation recognizing Jerusalem as the capital of Israel. In 2021, Biden revoked a Trump proclamation that banned immigrants who presented a risk during the coronavirus (COVID-19) pandemic by issuing a presidential proclamation of his own. The exact number of existing presidential memoranda and proclamations is unknown because those documents are not as meticulously documented as executive orders.
In the contemporary United States, individuals inside and outside government criticize executive orders as a method for presidents to create law from the executive branch without having to seek congressional approval. Opponents of the orders argue that they are sometimes used to exceed presidential power and bypass Congress. Supporters of the orders assert that Article II of the Constitution grants this power to the president. Supporters also contend that executive orders must be based on existing law, meaning presidents cannot simply create unorthodox laws through executive orders.
Bibliography
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