Most people wonder where the president gets their powers to
issue Executive Orders (Acts, Memoradums). The following is a brief explanation
of what and how Executive Orders are issued
Executive Order
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 law when
they take authority from a legislative power which grants its power directly to
the Executive by the Constitution, or are made pursuant to Acts of Congress
that explicitly delegate to the President some degree of discretionary power "delegated
legislation". Like both legislative statutes and 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 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 72-hour length strikes on enemies,
and in general fine-tuning policy choices in the implementation of broad
statutes.
Basis in United States Constitution
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 or face
impeachment. Most executive orders use these Constitutional reasoning's 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 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.
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.
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 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 the following:
- National Security Directives
- Homeland Security Presidential Directives "presidential decision directives"
History and use
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 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 with an order issued on 20 October 1862, by President
Abraham Lincoln. The documents that later came to be known as "executive
orders" apparently gained their name from this document, captioned
"Executive Order Establishing a Provisional Court in Louisiana."
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 1081
orders by Theodore Roosevelt, 1203 orders by Calvin Coolidge, and 1803 orders
by Woodrow Wilson. Franklin D. Roosevelt has the distinction of making record
3522 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
more than 3,500 executive orders on 6 March 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 7 March 1934, he created the National Industrial Recovery Act "Executive
Order 6632". On 29 June, the president issued Executive Order 6763
"under the authority vested in me by the Constitution", thereby
creating the National Labor Relations Board.
The Hughes Court of the 1934 term found the National
Industrial Recovery Act "NIRA" 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 15 June, he
issued Executive Order 7075, which terminated NIRA and replaced it with the
Office of Administration of the National Recovery Administration.
Roosevelt's Supreme Court of Justices Hugo Black, Stanley
Reed, Felix Frankfurter, William O. Douglas, Frank Murphy and James F. Byrnes were
sympathetic to the President's choices. Only George Washington had had such
influence over Court appointments, choosing all of its original members.
Criticisms
Large policy changes with wide-ranging effects have been
effected 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,
where Roosevelt 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 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, 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 Obama revoked Executive Order 13233
in January 2009.
The Heritage Foundation has 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.
Legal conflicts
In 1935, the Supreme Court overturned five of President
Franklin Roosevelt's executive orders "6199, 6204, 6256, 6284, and 6855".
Executive Order 12954, issued by President 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.
President Clinton's Executive Order 13155 was also overturned. This order
required federal benefits and services to be provided in foreign languages.
This order was overturned by the Supreme Court, Alexander v. Sandoval "99-1908"
532 U.S.
275, on 24 April 2001.
Congress has the power to overturn an executive order by
passing legislation in conflict with 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 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.
On 30 July 2014, the Republican-led House of Representatives
approved a resolution authorizing Speaker John Boehner to sue President Barack
Obama over claims 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 21 November 2014.
State governors' executive
orders
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.
Presidential proclamation
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".
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.
Revised: 08 March 2016
