Example from 1948
Example from 2017
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. 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".
The U.S. Supreme Court
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.
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.
History and use
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.
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 me with a full, precise, and distinct general idea of the affairs of the United States" in their fields.
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.
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.
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".
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.
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 maintaining that they are not constitutionally required to do so.
Joe Biden became the president to issue more executive orders in first 100 days than any other president since Harry Truman.
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.
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
Large policy changes with wide-ranging effects have been implemented by executive order, including the racial integration
of the armed forces
under President Truman.
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.
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.
In 1935, the Supreme Court overturned five of Franklin Roosevelt's executive orders (6199, 6204, 6256, 6284 and 6855).
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, the 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.
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
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".
The suit was filed in the US District Court for the District of Columbia on November 21, 2014.
State executive orders
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.
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.
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)".
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.
- ^ "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
- ^ 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. 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.
- ^ 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.
- ^ "Biden's 1st 100 Days: A Look By The Numbers". NPR. April 27, 2021. 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.
- ^ https://www.federalregister.gov/presidential-documents/executive-orders
- ^ "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.com, 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.
- ^ "Federal court halts Trump's immigration ban". The Verge. January 28, 2017. 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 https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf
- ^ 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.
- 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.
Last edited on 16 June 2021, at 04:42
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