Executive order (United States)

Basis in the United States Constitution

The United States Constitution does not have a provision that explicitly permits the use of executive orders. The term executive power in Article II, Section 1, Clause 1 of the Constitution is not entirely clear. The term is mentioned as direction to "take Care that the Laws be faithfully executed" and is part of Article II, Section 3, Clause 5. The consequence of failing to comply possibly being removal from office.

The U.S. Supreme Court has held 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 exceeded the authority of the president or could be better handled through legislation.

The Office of the Federal Register is responsible for assigning the executive order a sequential number after receipt of the signed original from the White House and printing the text of the executive order in the daily Federal Register and Title 3 of the Code of Federal Regulations.

Other types of orders issued by "the Executive" are generally classified simply as administrative orders rather than executive orders. 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. Some types of Presidential directives are the following:

History and use

With the exception of William Henry Harrison, all presidents beginning with George Washington in 1789 have issued orders that in general terms can be described as executive orders. Initially they took no set form. Consequently, such orders varied as to form and substance.

The first executive order was issued by George Washington on June 8, 1789, addressed to the heads of the federal departments, instructing them “to impress me with a full, precise, and distinct general idea of the affairs of the United States” in their fields.

The most famous executive order was by President Abraham Lincoln when he issued the Emancipation Proclamation on January 1, 1863. Political scientist Brian R. Dirck states:

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 went mostly unannounced and undocumented, seen only by the agencies to which they were directed. This changed when the Department of State instituted a numbering scheme in 1907, starting retroactively with United States Executive Order 1 issued on October 20, 1862, by President Abraham Lincoln. The documents that later came to be known as "executive orders" apparently gained their name from this order issued by Lincoln, which was captioned "Executive Order Establishing a Provisional Court in Louisiana". This 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 to designate the salaries of the court's officers.

President Truman's Executive Order 10340 in Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952) placed all steel mills in the country under federal control. This was found 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. Likewise, when presidents believe their authority for issuing an executive order stems from within the powers outlined in the Constitution, the order will simply proclaim "under the authority vested in me by the Constitution" instead.

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.

President Truman issued 907 executive orders, with 1,081 orders by Theodore Roosevelt, 1,203 orders by Calvin Coolidge, and 1,803 orders by Woodrow Wilson. Franklin D. Roosevelt has the distinction of making a record 3,522 executive orders.

Franklin Roosevelt

Prior to 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. President Franklin Roosevelt issued the first of his 3,522 executive orders on March 6, 1933, declaring a bank holiday, forbidding banks to release gold coin or bullion. Executive Order 6102 forbade the hoarding of gold coin, bullion and gold certificates. A further executive order required all newly mined domestic gold be delivered to the Treasury.

By Executive Order 6581, the president created the Export-Import Bank of the United States. On March 7, 1934, he created the National Industrial Recovery Act (Executive Order 6632). On June 29, the president issued Executive Order 6763 "under the authority vested in me by the Constitution", thereby creating the National Labor Relations Board.

In 1934, while Charles Evans Hughes was Chief Justice of the United States (in the time period known as the Hughes Court), the Court found that the National Industrial Recovery Act (NIRA) was unconstitutional. The president then issued Executive Order 7073 "by virtue of the authority vested in me under the said Emergency Relief Appropriation Act of 1935", reestablishing the National Emergency Council to administer the functions of the NIRA in carrying out the provisions of the Emergency Relief Appropriations Act. On June 15, he issued Executive Order 7075, which terminated NIRA and replaced it with the Office of Administration of the National Recovery Administration.

In the years that followed, President Roosevelt replaced the outgoing judges with those more in line with his views, ultimately appointing Hugo Black, Stanley Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, Robert H. Jackson and James F. Byrnes to the Court. Historically, only George Washington had equal or greater influence over Supreme Court appointments, choosing all of its original members. Justices Frankfurter, Douglas, Black, and Jackson dramatically checked presidential power by invalidating the executive order at issue in The Steel Seizure Case (i.e., Executive Order 10340). In that case Roosevelt's successor, President Truman, had ordered private steel production facilities seized in support of the Korean War effort, but the Court held the executive order was not within the power granted to the President by the Constitution.

Reaction

Large policy changes with wide-ranging effects have been implemented through executive order, including the racial integration of the armed forces under Harry Truman and the desegregation of public schools under Dwight D. Eisenhower.

Two extreme examples of an executive order are Franklin Roosevelt's Executive Order 6102 "forbidding the hoarding of gold coin, gold bullion, and gold certificates within the continental United States" and Executive Order 9066, which delegated military authority to remove any or all people in a military zone (used to target Japanese-Americans and German-Americans in certain regions). The order was then delegated to General John L. DeWitt, and 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.

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 stated 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 Barack Obama 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.

Legal conflicts

In 1935, the Supreme Court overturned five of President Franklin Roosevelt's executive orders (6199, 6204, 6256, 6284, 6855). Executive Order 12954, issued by President Bill Clinton in 1995, attempted to prevent the federal government from contracting with organizations that had strike-breakers on the payroll; a federal appeals court subsequently ruled that the order conflicted with the National Labor Relations Act, and invalidated the order.

Congress has the power to overturn an executive order by passing legislation that invalidates it. Congress can also refuse to provide funding necessary to carry out certain policy measures contained with the order or to 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, due to the supermajority vote required and the fact that such a vote leaves individual lawmakers vulnerable to political criticism.

On July 30, 2014, the Republican-led House of Representatives approved a resolution authorizing Speaker of the House John Boehner to sue President Barack 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 U.S. District Court for the District of Columbia on November 21, 2014.

Part of President Donald Trump's executive order Protecting the Nation from Foreign Terrorist Entry into the United States, which temporarily banned entry to the US from citizens of seven Muslim-majority countries, including for permanent residents, was stayed by a federal court on January 28, 2017.

State governors' executive orders

Executive orders issued by state governors are not the same as statutes passed by state legislatures, but do have the force of law in a similar way to the federal system. 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.

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, George "Sonny" Perdue, governor of Georgia, issued 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 order would have the force of law.

Presidential proclamation

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. 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.