What is the purpose of an executive order?

Just hours after taking the oath of office, President Joe Biden signed nine executive orders – far surpassing every other president’s first day on the job in modern history.

These orders advance urgent issues like COVID-19 response and undo many of Trump’s policies on immigration and environmental deregulation.

Biden is not the first U.S. president to issue an executive order, and he certainly won’t be the last. My own research shows executive orders have been a mainstay in American politics – with limitations.

What is an executive order?

Though the Constitution plainly articulates familiar presidential tools like vetoes and appointments, the real executive power comes from reading between the lines.

Presidents have long interpreted the Constitution’s Article 2 clauses – like “the executive power shall be vested in a President” and “he shall take care that the laws be faithfully executed” – to give them total authority to enforce the law through the executive branch, by any means necessary.

One leading way they do that is through executive orders, which are presidential written directives to agencies on how to implement the law. The courts view them as legally valid unless they violate the Constitution or existing statutes.

Executive orders, like other unilateral actions, allow presidents to make policy outside of the regular lawmaking process.

This leaves Congress, notoriously polarized and gridlocked, to respond.

Thus, executive orders are unilateral actions that give presidents several advantages, allowing them to move first and act alone in policymaking.

How have they historically been used?

Every U.S. president has issued executive orders since they were first systematically cataloged in 1905.

In March of 2016, then-presidential candidate Donald Trump criticized President Obama’s use of executive orders.

“Executive orders sort of came about more recently. Nobody ever heard of an executive order. Then all of a sudden Obama – because he couldn’t get anybody to agree with him – he starts signing them like they’re butter,” Trump said. “So I want to do away with executive orders for the most part.”

Little in this statement is true.

Obama signed fewer orders than his predecessors – averaging 35 per year. Trump issued an average of 55 per year.

Against conventional wisdom, presidents have relied less on executive orders over time. Indeed, modern presidents used drastically fewer orders per year – an average of 59 – than their pre-World War II counterparts, who averaged 314.

Executive orders have been used for everything from routine federal workplace policies like ethics pledges to the controversial 2017 travel ban restricting entry into the United States.

They have been used to manage public lands, the economy, the civil service and federal contractors, and to respond to various crises such as the Iran hostage situation and the COVID-19 pandemic.

Presidents often use them to advance their biggest agenda items, by creating task forces or policy initiatives and directing rulemaking, the process for formally translating laws into codified policy.

Limitations in their use

Why don’t presidents always issue executive orders, a seemingly powerful policy device? Because they come with serious constraints.

First, executive orders may not be as unilateral as they seem. Drafting an order involves a time-consuming bargaining process with various agencies negotiating its content.

Second, if they are issued without proper legal authority, executive orders can be overturned by the courts – although that happens infrequently.

Trump’s travel ban faced several legal challenges before it was written in a way to satisfy the court. Many of his initial orders, on the other hand, didn’t face legal scrutiny because they simply requested agencies to work within their existing authority to change important policies like health care and immigration.

Congress is another barrier, as they give presidents the legal authority to make policy in a certain area. By withholding that authority, Congress can deter presidents from issuing executive orders on certain issues. If the president issues the order anyway, the courts can overturn it.

Legislators can also punish presidents for issuing executive orders they do not like by sabotaging their legislative agendas and nominees or defunding their programs.

Even a polarized Congress can find ways to sanction a president for an executive order they don’t like. For example, a committee can hold an oversight hearing or launch an investigation – both of which can decrease a president’s public approval rating.

Congresses of today are equipped to impose these constraints and they do so more often on ideologically opposed administrations. This is why scholars find modern presidents issue fewer executive orders under divided government, contrary to popular media narratives that present executive orders as a president’s way of circumventing Congress.

Finally, executive orders are not the last word in policy. They can be easily revoked.

New presidents often reverse previous orders, particularly those of political opponents. Biden, for instance, quickly revoked Trump’s directives that excluded undocumented immigrants from the U.S. Census.

All recent presidents have issued revocations, especially in their first year. They face barriers in doing so, however, including public opinion, Congress and legal limitations.

Regardless, executive orders are not as durable as laws or regulations.

The future of executive orders

What will change for executive orders in a post-Trump era? I wouldn’t expect much.

As he promised, Biden has already revoked numerous Trump executive orders and issued new ones on some big agenda items. He’ll likely issue more: for example, to tackle racial injustice and student debt.

Other policies, like an economic stimulus, will require legislation since Congress holds the purse strings.

Though Biden inherits a Democratic House and Senate, their majorities are marginal, and moderate party dissenters may frustrate his agenda. Even so, he will undoubtedly use all available legal authority to unilaterally transform his goals into government policy.

But then again, these directives may be undone by the next president with the stroke of a pen.

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Executive Orders and Memoranda

President Abraham Lincoln’s Emancipation Proclamation shifted the focus of the Civil War and set the stage for the passage of the 13th Amendment to the United States Constitution which abolished slavery. The Emancipation Proclamation is not just a memorable speech; it is also the most well-known executive order in history. It provided that all slaves in the rebellious states “shall be then, thenceforward, and forever free” almost two years prior to Congress’s ratification of the 13th amendment.

Executive actions play an extremely important role in the President’s ability to enforce the laws of the United States, but have also become more controversial as Presidents continue to use the device more frequently and in unprecedented ways. This presentation discusses the sources of authority that the President can rely on to issue executive orders, the types of executive orders, and differentiates executive orders from executive memoranda.

Sources of Authority for Executive Actions

          The President can draw on three sources to issue an executive action (an executive action is an executive order or memorandum). The first is the Constitution itself. Article II vests the executive power in the President, which gives him the power to oversee and direct the various aspects of the executive branch. The Constitution goes on to charge the President with responsibility to faithfully execute the laws of the United States. This prevents the President from acting in opposition to the law, and an executive order that conflicts with an existing law can be invalidated.

The second source of authority is from the legislative branch. Congress may grant the President or an executive agency the limited power to make rules on certain topics. For example, Congress may vest the Transportation Safety Administration (the TSA) with the power to decide what people can bring onto airplanes. When Congress does this, it is presumed that the President is authorized to issue executive orders to carry out Congress’ goals in passing federal legislation.

The third source for executive actions is the President’s inherent authority, which is defined in Black’s Law Dictionary as “a power that necessarily derives from an office, position, or status.” A President’s inherent authority can fluctuate in scope and acts incidental to both Congress’s and the President’s explicit powers. In the early 1890s, President Grover Cleveland issued an executive order to send US soldiers to end a railroad labor strike that disrupted rail traffic in the Midwest. President Cleveland claimed inherent authority as his justification. When his actions were challenged in court, the Supreme Court agreed with President Cleveland, finding what he did constitutional because he did so under his inherent authority and “incidental powers” to assist Congress in regulating interstate commerce. The Court reasoned that the railroad strike disrupted commercial activity, which limited Congress’s ability to achieve one of its objectives: regulating interstate commerce. President Cleveland was thus helping Congress by ending interference with Congress’ ability to regulate interstate commerce.

Executive Actions and What They Do

          The two most common executive actions are an executive order and the executive memorandum.

An executive order is a written statement that the President issues to “direct or instruct the actions of executive agencies or government officials, or to set policies for the executive branch to follow.” It is signed by the President, approved by the Office of Management and Budget and the Attorney General and is recorded in the federal register. An executive order has the full force and effect of a law enacted by the legislature, except where it is contradicted by other duly passed federal law.[5] Therefore, a President can issue an executive order to bypass Congress’ bureaucracy and advance policy objectives without having to go through the legislative process.

          An executive memorandum is like an executive order, but it does not have the same procedural requirements. Unlike an executive order that must be signed and published, there is no formal process for issuing an executive memorandum. Furthermore, it does not have to be approved by the Office of Management and Budget and the Attorney General, nor must it be recorded in the federal register.

          One example of a forum particularly susceptible to the executive order is military operations. The President, as Commander-in-Chief of the military, is tasked with running the military and may use executive action to set military policy. For example, in 1948, President Harry Truman issued an executive order that desegregated the military. He relied on his authority as Commander-in-Chief to act. President Ronald Reagan relied on the National Security Act of 1947 to issue an executive order which authorized surveillance of certain people and this law also formed the basis for the NSA’s justification to collect data in the early 2000s during the “War on Terror.”[7] 

Executive orders can also be used to outline strategy, such as when President Barack Obama issued an executive order, pursuant to his authority under the Clean Water Act, detailing the federal government’s strategy to restore the Chesapeake Bay. Even more recently, President Donald Trump issued an executive memorandum, which directs his Administration to develop a plan to defeat ISIS.  

How an Executive Order or Memorandum Can Be Terminated

          An executive order or memorandum can be terminated in several ways. The sitting President can rescind an order issued by himself or a previous President or can override the old order by issuing a new order contradicting it. This frequently occurs when a new president takes office and wants to establish new policy goals. For example, when President Obama took office, he issued an executive order that counteracted an executive order signed by President George W. Bush which limited funding for stem cell research. Similarly, when President Trump took office he issued an executive memorandum contradicting President Obama’s previous memorandum concerning the Deferred Action for Childhood Arrivals (or “DACA”) initiative.

          Congress can override an executive order or memorandum expressly or by eliminating the funding necessary to carry it out. Recall that while an executive order has the force of federal law, it is subordinate to federal law that contradicts it. Overriding an executive action is rare, however, because legislation to overrule an executive action by a sitting president will almost certainly be vetoed by that president, and, in today’s hyper-partisan environment, gathering a two-thirds majority necessary to override a presidential veto is difficult.

          Finally, a court can overturn an executive order if the President acted outside of his authority when he issued it. This can be a difficult determination because, when the President issues an order, he usually gives multiple sources for his authority, such as the Constitution, his power as Commander-in-Chief, and a specific statute, to which courts tend to defer. When courts do overturn executive action, it’s usually on the basis that the order violates the civil rights of individuals or groups.

The most famous example of a court overturning an executive action was in in 1952, in Youngstown Sheet & Tube Co. v. Sawyer. There, during the Korean War, President Truman ordered steel mills seized to break up a strike of steel mill workers. The Court held that Truman did not have the authority to issue an executive order seizing steel mills because no specific statute authorized him to do so. His power as Commander-in-Chief did not authorize him to unilaterally take private property. Moreover, Congress had specifically rejected the idea of granting the President the power to seize factories for military production.

In recent years, Congress’s gridlock and increased polarization have pushed presidents to turn to executive actions more and more as substitutes for legislation. This trend will likely continue as our nation’s Commander-in-Chief looks for alternative paths to set and enforce policy.