United States Presidents issue executive orders to help officers and agencies of the executive branch manage the operations within the federal government itself. Executive orders have the full force of law1 when they take authority from a power granted directly to the Executive by the Constitution, or are made in pursuance of certain Acts of Congress that explicitly delegate to the President some degree of discretionary power (delegated legislation). Like statutes or regulations promulgated by government agencies, executive orders are subject to judicial review, and may be struck down if deemed by the courts to be unsupported by statute or the Constitution. Major policy initiatives usually require approval by the legislative branch, but executive orders have significant influence over the internal affairs of government, deciding how and to what degree laws will be enforced, dealing with emergencies, waging war, and in general fine policy choices in the implementation of broad statutes.
There is no constitutional provision nor statute that explicitly permits executive orders. The term "executive power" Article II, Section 1, Clause 1 of the Constitution, refers to the title of President as the executive. He is instructed therein by the declaration "take Care that the Laws be faithfully executed" made in Article II, Section 3, Clause 5, else he faces impeachment. Most executive orders use these Constitutional reasonings as the authorization allowing for their issuance to be justified as part of the President's sworn duties,2 the intent being to help direct officers of the U.S. Executive carry out their delegated duties as well as the normal operations of the federal government: the consequence of failing to comply possibly being the removal from office.3
An executive order of the President must find support in the Constitution, either in a clause granting the President specific power, or by a delegation of power by Congress to the President. 4
Other types of orders issued by "the Executive" are generally classified simply as administrative orders rather than Executive Orders.5 These are typically the following:
Presidential directives are considered a form of executive order issued by the President of the United States with the advice and consent of a major agency or department found within the Executive branch of government.6 Some types of Directives are the following:
- National Security Directives
- Homeland Security Presidential Directives (presidential decision directives)
All presidents beginning with George Washington in 1789 have issued orders that in general terms can be described as executive orders. During the early period of the Republic, there was no set form with which such orders were required to comply, and consequently, such orders varied widely as to form and substance.10 Until the early 1900s, executive orders went mostly unannounced and undocumented, seen only by the agencies to which they were directed. However, the Department of State instituted a numbering scheme for executive orders in 1907, starting retroactively with an order issued on October 20, 1862, by President Abraham Lincoln. The documents that later came to be known as "Executive Orders" probably gained their name from this document, captioned "Executive Order Establishing a Provisional Court in Louisiana."5
Until 1952, there were no rules or guidelines outlining what the president could or could not do through an executive order. However, the Supreme Court ruled in Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952) that Executive Order 10340 from President Harry S. Truman placing all steel mills in the country under federal control was invalid because it attempted to make law, rather than clarify or act to further a law put forth by the Congress or the Constitution. Presidents since this decision have generally been careful to cite which specific laws they are acting under when issuing new executive orders.
Wars have been fought upon executive order, including the 1999 Kosovo War during Bill Clinton's second term in office. However, all such wars have 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, although all presidents since its passage have complied with the terms of the Resolution while maintaining that they are not constitutionally required to do so.
Critics have accused presidents of abusing executive orders, of using them to make laws without Congressional approval, and of moving existing laws away from their original mandates.11 Large policy changes with wide-ranging effects have been effected through executive order, including the integration of the armed forces under Harry Truman and the desegregation of public schools under Dwight D. Eisenhower.
One extreme example of an executive order is Executive Order 9066, where Franklin D. Roosevelt delegated military authority to remove any or all people (used to target specifically Japanese Americans and German Americans) in a military zone. The authority delegated to General John L. DeWitt 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.
Executive Order 13233, issued by President George W. Bush in 2001, which restricted public access to the papers of former presidents, was criticized by the Society of American Archivists and other groups, stating that 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 Obama revoked Executive Order 13233 in January 2009.12
As of 1999, U.S. courts have overturned only two executive orders: the aforementioned Truman order and a 1995 order issued by President Clinton that attempted to prevent the federal government from contracting with organizations that had strike-breakers on the payroll.13 Congress was able to overturn an executive order by passing legislation in conflict with it during the period of 1939 to 1983 until the Supreme Court ruled in Immigration and Naturalization Service v. Chadha that Congress may not promulgate a statute granting to itself a legislative veto over actions of the executive branch inconsistent with the bicameralism principle and Presentment Clause of the United States Constitution.14
The loss of the legislative veto has caused Congress to look for alternative measures to override executive orders such as refusing to approve funding necessary to carry out certain policy measures contained with the order or to legitimize policy mechanisms. In 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 due to the supermajority vote required and the fact that such a vote leaves individual lawmakers very vulnerable to political criticism.15
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Executive orders as issued by the governors of the states are not statutes like those passed by state legislatures, but do have the force of law in a similar way to the federal system. 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.
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 by, 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, the Governor of Georgia made an executive order for all of its state agencies to reduce water use during a major drought. This was also demanded of its counties' water systems, however it is unclear whether this would have the force of law.
According to political science professor 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)".16 Presidents define situations or conditions on situations that become legal or economic truth. These orders carry the same force of law as executive orders — the difference between the two is that executive orders are aimed at those inside government while proclamations are aimed at those outside government.
The administrative weight of these 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 of proclamations as largely ceremonial or symbolic in nature. However, the legal weight of presidential proclamations suggests their importance to presidential governance.17
- Delegated legislation
- List of United States federal executive orders
- Presidential Proclamation
- Presidential Determination
- Presidential Memorandum
- Presidential Directive
- Signing statement (United States)
- Decree of the President of Russia
- Order in Council
- John Contrubis, Executive Orders and Proclamations, CRS Report for Congress #95-722A, March 9, 1999, Pp. 1-2
- SCOTUS, Mississippi v. Johnson, 71 U.S. 475 (1866), The Supreme Court's decision held that the President has two kinds of task to perform: ministerial and discretionary. EOs help facilitate the execution of the Executive's ministerial duties.
- SCOTUS, Myers v. United States, 272 U.S. 52 (1926), Majority Opinion.
- 343 U.S. 579, 585. Antieau, Modern Constitutional Law,§13:24 (1969)
- Harold C. Relyea, Presidential Directives: Background and Overview, CRS Report for Congress #98-611, Nov. 26, 2008.
- National Security Directivesdead link, San Diego State University, Presidential Documents, Retrieved 2009-12-07.
- http://www.archives.gov/federal-register/executive-orders/obama.html. Missing or empty
- http://www.whitehouse.gov/briefing-room/presidential-actions/executive-orders. Missing or empty
- Gerhard Peters (2013-06-13). "The American Presidency Project / Executive Orders". Retrieved 2013-11-01.
- 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.
- Gaziano, Todd F. (2001-02-21). "The Use and Abuse of Executive Orders and Other Presidential Directives". Legal Memorandum #2 (Heritage Foundation). Retrieved 2008-10-11.
- "Executive Order 13489 of January 21, 2009 — Presidential Records". Retrieved 2009-01-22., Federal Register publication page and date: 74 F.R. 4669, January 26, 2009.
- Catherine Edwards, "Emergency Rule, Abuse of Power?," Insight on the News, August 23, 1999, Pg. 18
- Pika, Joseph A., Anthony Maltese, The Politics of the Presidency, 7th ed., 2010, pg. 276-277
- Harold Hongju Koh, The National Security Constitution: Sharing Power after the Iran-Contra Affair, 1990, pg. 118–19
- Phillip J. Cooper. 2002. By Order of The President. University of Kansas Press. Page 116.
- Presidential Proclamations Project, University of Houston, Political Science Dept., Retrieved 2009-12-07
- Cooper, Phillip J., By Order of the President: The Use and Abuse of Executive Direct Action, Kansas State University, Kanniversity Press, 2002.
- Howell, William G., Power without Persuasion: The Politics of Direct Presidential Action, Princeton University Press, 2003.
- 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.
- Archive of U.S. Executive Orders
- What is an Executive Order?
- Executive Orders: Issuance and Revocation Congressional Research Service
- Executive Orders at The American Presidency Project, Searchable Archive of Over 3,600 Executive Orders
- Presidential Proclamations Project, University of Houston, Political Science Dept.
- Governor of Missouri's executive orders 2012-1982, Missouri Secretary of State's Office