thumb|Leland-Boker Authorized Edition of the Emancipation Proclamation, printed in June 1864 with a presidential signatureAn
executive order in the
United States is an order issued by the
President, the head of the
executive branch of the
federal government. In other countries, similar edicts may be known as
decrees, or
orders-in-council. Executive orders may also be issued at the
state level by a state's
Governor or at the local level by the city's
Mayor. U.S. Presidents have issued Executive Orders since 1789, usually to help officers and agencies of the Executive branch manage the operations within the Federal Government itself. Executive orders have the full force of law, since issuances are typically made in pursuance of certain
Acts of Congress, some of which specifically delegate to the President some degree of discretionary power (
delegated legislation), or are believed to take authority from a power granted directly to the Executive by the Constitution. However, these perceived justifications cited by Presidents when authoring Executive Orders have come under criticism for exceeding Executive authority; at various times throughout U.S. history, challenges to the legal validity or justification for an order have resulted in legal proceedings.
Basis in U.S. Constitution
U.S. Presidents have issued Executive Orders since 1789. Although there is no
Constitutional provision or statute that explicitly permits Executive Orders, there is a vague grant of "executive power" given in
Article II, Section 1,
Clause 1 of the Constitution, and furthered by the declaration "take Care that the Laws be faithfully executed" made in Article II, Section 3,
Clause 4. At the minimum, 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, the intent being to help direct officers of the US 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.
Other types of orders issued by 'the Executive' are generally classified simply as administrative orders rather than Executive Orders. These are typically:
Presidential Determination
(Presidential) Memorandum
(Presidential) Notice
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. Some types of Directives are:
National Security Directives
Homeland Security Presidential Directives (presidential decision directives)
History and use
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."
Until the 1950s, 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.
Criticisms
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.
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, which restricted public access to the papers of Presidents Reagan and George H.W. Bush, was more recently criticised by the Society of American Archivists and other groups, stating that it "violates both the spirit and letter of existing US 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." Executive Order 13233 was later revoked by President Obama.
It is quite common for US Presidents to issue executive orders that instruct federal agencies to promulgate administrative regulations in order to circumvent the legislative process in the US Congress altogether, though, as alluded to above, this can violate the US Constitution in a number of ways. US Presidents are quite aware that US congressional politics can defeat or otherwise prevent the passage of legislation presidents deem politically important. In this regard, US Presidents have issued executive orders calling upon federal agencies, such as the US Environmental Protection Agency (EPA) and the US Department of Energy (DOE), to amend administrative regulations where the political process of adopting new congressional legislation necessary to implement multilateral environmental regulatory treaty obligations a president wishes for the US to assume would prevent US ratification of/accession to that treaty.
Legal conflicts
To date, U.S. courts have overturned only two executive orders: the aforementioned Truman order, and a 1996 order issued by President Clinton that attempted to prevent the U.S. government from contracting with organizations that had
strike-breakers on the payroll. Congress may overturn an executive order by passing legislation in conflict with it or by refusing to approve funding to enforce it. 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.
State governors' executive orders
Executive orders as issued by the
governors of the
states are not laws, but do have the same binding nature. 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.
A legal challenge to a Presidential order was when Clinton attempted to levy a tax on telephone service to provide money to pay for internet service for the poor. It was over turned in court on the grounds it violated the Constitutional provision that tax laws must originate in the House.
Presidential proclamation
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. 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.
See also
Delegated legislation
List of United States federal executive orders
Presidential Proclamation
Presidential Determination
Presidential Memorandum
Presidential Directive
Signing statement (United States)
Order-in-Council
References
Further reading
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.
External links
Archive of U.S. Executive Orders
What is an Executive Order?
Executive Orders at The American Presidency Project, Searchable Archive of Over 3,600 Executive Orders
Presidential Proclamations Project, University of Houston, Political Science Dept.
Category:United States federal law
Category:Executive branch of the United States government
Category:Public administration
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