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In the United States, an executive order is a directive by the
president of the United States The president of the United States (POTUS) is the head of state and head of government of the United States of America. The president directs the Federal government of the United States#Executive branch, executive branch of the Federal gove ...
that manages operations of the federal government. The legal or constitutional basis for executive orders has multiple sources. Article Two of the United States Constitution gives presidents broad executive and enforcement authority to use their discretion to determine how to enforce the law or to otherwise manage the resources and staff of the executive branch. The ability to make such orders is also based on expressed or implied Acts of Congress that delegate to the president some degree of discretionary power ( delegated legislation).John Contrubis, '' Executive Orders and Proclamations'', CRS Report for Congress #95-722A, March 9, 1999, Pp. 1-2 The vast majority of executive orders are proposed by federal agencies before being issued by the president. Like both legislative statutes and the regulations promulgated by government agencies, executive orders are subject to
judicial review Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incomp ...
and may be overturned if the orders lack support by statute or the Constitution. Some 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 wars, and in general fine-tuning policy choices in the implementation of broad statutes. As the head of state and head of government of the United States, as well as commander-in-chief of the United States Armed Forces, only the President of the United States can issue an executive order. Presidential executive orders, once issued, remain in force until they are canceled, revoked, adjudicated unlawful, or expire on their terms. At any time, the president may revoke, modify or make exceptions from any executive order, whether the order was made by the current president or a predecessor. Typically, a new president reviews in-force executive orders in the first few weeks in office.


Basis in the United States Constitution

The
United States Constitution The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the natio ...
does not have a provision that explicitly permits the use of executive orders. ArticleII, Section1, Clause1 of the Constitution simply states: "The executive Power shall be vested in a President of the United States of America." Sections2 and3 describe the various powers and duties of the president, including "He shall take care that the Laws be faithfully executed". 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 A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made ...
. Attempts to block such orders have been successful at times, when such orders either exceeded the authority of the President or could be better handled through legislation. The
Office of the Federal Register The Office of the Federal Register is an office of the United States government within the National Archives and Records Administration. The Office publishes the ''Federal Register'', ''Code of Federal Regulations'', ''Public Papers of the Presid ...
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 eventually in Title3 of the ''Code of Federal Regulations''.


History and use

With the exception of
William Henry Harrison William Henry Harrison (February 9, 1773April 4, 1841) was an American military officer and politician who served as the ninth president of the United States. Harrison died just 31 days after his inauguration in 1841, and had the shortest pres ...
, all presidents since
George Washington George Washington (February 22, 1732, 1799) was an American military officer, statesman, and Founding Father who served as the first president of the United States from 1789 to 1797. Appointed by the Continental Congress as commander of ...
in 1789 have issued orders that in general terms can be described as executive orders. Initially, they took no set form and so they varied as to form and substance. The first executive order was issued by Washington on June 8, 1789; addressed to the heads of the federal departments, it instructed them "to impress me with a full, precise, and distinct general idea of the affairs of the United States" in their fields. According to political scientist Brian R. Dirck, the most famous executive order was by President
Abraham Lincoln Abraham Lincoln ( ; February 12, 1809 – April 15, 1865) was an American lawyer, politician, and statesman who served as the 16th president of the United States from 1861 until his assassination in 1865. Lincoln led the nation throu ...
, when he issued the Emancipation Proclamation on September 22, 1862: Until the early 1900s, executive orders were mostly unannounced and undocumented, and seen only by the agencies to which they were directed. That changed when the US Department of State instituted a numbering scheme in 1907, starting retroactively with United States Executive Order 1, issued on October 20, 1862, by President Lincoln.Lord, Clifford et al.
Presidential Executive Orders
', p. 1 (Archives Publishing Company, 1944).
The documents that later came to be known as "executive orders" apparently gained their name from that order issued by Lincoln, which was captioned "Executive Order Establishing a Provisional Court in Louisiana". That court functioned during the military occupation of
Louisiana Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-smallest by area and the 25th most populous of the 50 U.S. states. Louisiana is bord ...
during the
American Civil War The American Civil War (April 12, 1861 – May 26, 1865; also known by Names of the American Civil War, other names) was a civil war in the United States. It was fought between the Union (American Civil War), Union ("the North") and t ...
, and Lincoln also used Executive Order1 to appoint Charles A. Peabody as judge and designate the salaries of the court's officers. President Harry Truman's Executive Order 10340 placed all the country's steel mills under federal control, which was found invalid in '' Youngstown Sheet & Tube Co. v. Sawyer'', 343 US 579 (1952), because it attempted to make law, rather than to clarify or to further a law put forth by the Congress or the Constitution. Presidents since that decision have generally been careful to cite the specific laws under which they act when they issue new executive orders; likewise, when presidents believe that their authority for issuing an executive order stems from within the powers outlined in the Constitution, the order instead simply proclaims "under the authority vested in me by the Constitution". Wars have been fought upon executive order, including the 1999
Kosovo War The Kosovo War was an armed conflict in Kosovo that started 28 February 1998 and lasted until 11 June 1999. It was fought by the forces of the Federal Republic of Yugoslavia (i.e. Serbia and Montenegro), which controlled Kosovo before the war ...
during President
Bill Clinton William Jefferson Clinton (né Blythe III; born August 19, 1946) is an American politician who served as the 42nd president of the United States from 1993 to 2001. He previously served as governor of Arkansas from 1979 to 1981 and again ...
's second term in office; however, all such wars have also 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, but all presidents since the passage of the resolution have complied with its terms, while maintaining that they are not constitutionally required to do so. Harry S. Truman issued 907 executive orders, with 1,081 orders made by Theodore Roosevelt, 1,203 orders made by Calvin Coolidge, and 1,803 orders made by
Woodrow Wilson Thomas Woodrow Wilson (December 28, 1856February 3, 1924) was an American politician and academic who served as the 28th president of the United States from 1913 to 1921. A member of the Democratic Party, Wilson served as the president of ...
. Franklin D. Roosevelt has the distinction of making a record 3,522 executive orders. In 2021, President Joseph Biden issued 42 executive orders in the first 100 days of his presidency, more than any other president since Harry Truman.


Franklin Roosevelt

Before 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, and forbidding banks to release gold coin or bullion. Executive Order 6102 forbade the hoarding of gold coin, bullion and
gold certificate Gold certificates were issued by the United States Treasury as a form of representative money from 1865 to 1933. While the United States observed a gold standard, the certificates offered a more convenient way to pay in gold than the use of coin ...
s. 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 established the
National Recovery Review Board National may refer to: Common uses * Nation or country ** Nationality – a ''national'' is a person who is subject to a nation, regardless of whether the person has full rights as a citizen Places in the United States * National, Maryland, c ...
(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 (the period being known as the
Hughes Court The Hughes Court refers to the Supreme Court of the United States from 1930 to 1941, when Charles Evans Hughes served as Chief Justice of the United States. Hughes succeeded William Howard Taft as Chief Justice after the latter's retirement, a ...
), 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 The Relief Appropriation Act of 1935 was passed on April 8, 1935, as a part of Franklin Delano Roosevelt's New Deal. It was a large public works program that included the Works Progress Administration (WPA), Public Works Administration (PWA), ...
", re-establishing the
National Emergency Council The Executive Office of the President (EOP) comprises the offices and agencies that support the work of the president at the center of the executive branch of the United States federal government. The EOP consists of several offices and agenci ...
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 the NIRA and replaced it with the Office of Administration of the National Recovery Administration. In the years that followed, Roosevelt replaced outgoing justices of the Supreme Court with people more in line with his views: Hugo Black, Stanley Reed, Felix Frankfurter, William O. Douglas, Frank Murphy,
Robert H. Jackson Robert Houghwout Jackson (February 13, 1892 – October 9, 1954) was an American lawyer, jurist, and politician who served as an Associate Justice of the U.S. Supreme Court from 1941 until his death in 1954. He had previously served as Unit ...
and James F. Byrnes. Historically, only George Washington has had equal or greater influence over Supreme Court appointments (as he chose all its original members). Justices Frankfurter, Douglas, Black, and Jackson dramatically checked presidential power by invalidating the executive order at issue in ''Youngstown Sheet & Tube Co. v. Sawyer'': in that case Roosevelt's successor, Harry S. Truman, had ordered private steel production facilities seized in Executive Order 10340 to support the
Korean War {{Infobox military conflict , conflict = Korean War , partof = the Cold War and the Korean conflict , image = Korean War Montage 2.png , image_size = 300px , caption = Clockwise from top:{ ...
effort: the Court held that the executive order was not within the power granted to the President by the Constitution.


Table of U.S. presidents using executive orders


Reaction

Large policy changes with wide-ranging effects have been implemented by executive order, including the racial integration of the armed forces under President Truman. 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 are Americans of Japanese people, Japanese ancestry. Japanese Americans were among the three largest Asian Americans, Asian American ethnic communities during the 20th century; but, according to the 2000 United States census, 2000 census, they ...
, non-citizen
Germans , native_name_lang = de , region1 = , pop1 = 72,650,269 , region2 = , pop2 = 534,000 , region3 = , pop3 = 157,000 3,322,405 , region4 = , pop4 = ...
, and non-citizen
Italians , flag = , flag_caption = The national flag of Italy , population = , regions = Italy 55,551,000 , region1 = Brazil , pop1 = 25–33 million , ref1 = , region2 ...
in certain regions). The order was then delegated to
General A general officer is an officer of high rank in the armies, and in some nations' air forces, space forces, and marines or naval infantry. In some usages the term "general officer" refers to a rank above colonel."general, adj. and n.". O ...
John L. DeWitt, and it 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 World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the World War II by country, vast majority of the world's countries—including all of the great power ...
. President George W. Bush issued
Executive Order 13233 Executive Order 13233 limited access to the records of former United States Presidents to a higher degree than the previous Order 12667, which it superseded. It was drafted by then White House Counsel Alberto Gonzales and issued by George W. B ...
in 2001, which restricted public access to the papers of former presidents. The order was criticized by the
Society of American Archivists The Society of American Archivists is the oldest and largest archivist association in North America, serving the educational and informational needs of more than 5,000 individual archivist and institutional members. Established in 1936, the org ...
and other groups, who say it "violates both the spirit and letter of existing U.S. law on access to presidential papers as clearly laid down in 44
USC USC most often refers to: * University of South Carolina, a public research university ** University of South Carolina System, the main university and its satellite campuses ** South Carolina Gamecocks, the school athletic program * University of ...
2201–07", and adding that the order "potentially threatens to undermine one of the very foundations of our nation". President
Barack Obama Barack Hussein Obama II ( ; born August 4, 1961) is an American politician who served as the 44th president of the United States from 2009 to 2017. A member of the Democratic Party (United States), Democratic Party, Obama was the first Af ...
subsequently 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 Franklin Roosevelt's executive orders (6199, 6204, 6256, 6284 and 6855). Executive Order 12954, issued by President
Bill Clinton William Jefferson Clinton (né Blythe III; born August 19, 1946) is an American politician who served as the 42nd president of the United States from 1993 to 2001. He previously served as governor of Arkansas from 1979 to 1981 and again ...
in 1995, attempted to prevent the federal government from contracting with organizations that had
strike-breakers A strikebreaker (sometimes called a scab, blackleg, or knobstick) is a person who works despite a strike. Strikebreakers are usually individuals who were not employed by the company before the trade union dispute but hired after or during the str ...
on the payroll: a federal appeals court ruled that the order conflicted with the National Labor Relations Act and overturned the order. Congress has the power to overturn an executive order by passing legislation that invalidates it, and can also refuse to provide funding necessary to carry out certain policy measures contained with the order or legitimize policy mechanisms. In the case of the former, the president retains the power to veto such a decision; however, 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, because of the supermajority vote required, and the fact that such a vote leaves individual lawmakers vulnerable to political criticism. On July 30, 2014, the US House of Representatives approved a resolution authorizing
Speaker of the House The speaker of a deliberative assembly, especially a legislative body, is its presiding officer, or the chair. The title was first used in 1377 in England. Usage The title was first recorded in 1377 to describe the role of Thomas de Hunger ...
John Boehner to sue President Obama over claims that he exceeded his executive authority in changing a key provision of the
Affordable Care Act The Affordable Care Act (ACA), formally known as the Patient Protection and Affordable Care Act and colloquially known as Obamacare, is a landmark U.S. federal statute enacted by the 111th United States Congress and signed into law by Pres ...
("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 November 21, 2014. Part of President
Donald Trump Donald John Trump (born June 14, 1946) is an American politician, media personality, and businessman who served as the 45th president of the United States from 2017 to 2021. Trump graduated from the Wharton School of the University of P ...
's executive order Protecting the Nation from Foreign Terrorist Entry into the United States, which temporarily banned entry to the US of citizens of seven Muslim-majority countries, including for permanent residents, was stayed by a federal court on January 28, 2017. However, on June 26, 2018, the US Supreme Court overturned the lower court order in '' Trump v. Hawaii'' and affirmed that the executive order was within the president's constitutional authority. The degree to which the President has the power to use executive orders to set policy for independent federal agencies is disputed. Many orders specifically exempt independent agencies, but some do not. Executive Order 12866 has been a particular matter of controversy; it requires cost-benefit analysis for certain regulatory actions.Copeland CW. (2013)
Economic Analysis and Independent Regulatory Agencies
Administrative Conference of the United States. See more a
Benefit-Cost Analysis at Independent Regulatory Agencies


State executive orders

Executive orders issued by state governors are not the same as statutes passed by state legislatures. 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 A state government is the government that controls a subdivision of a country in a federal form of government, which shares political power with the federal or national government. A state government may have some level of political autonom ...
when the
state legislature A state legislature is a legislative branch or body of a political subdivision in a federal system. Two federations literally use the term "state legislature": * The legislative branches of each of the fifty state governments of the United Sta ...
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 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 A fiscal year (or financial year, or sometimes budget year) is used in government accounting, which varies between countries, and for budget purposes. It is also used for financial reporting by businesses and other organizations. Laws in many ...
. The governor may also call the legislature into
special session In a legislature, a special session (also extraordinary session) is a period when the body convenes outside of the normal legislative session. This most frequently occurs in order to complete unfinished tasks for the year (often delayed by confli ...
. There are also other uses for gubernatorial executive orders. In 2007, for example, Sonny Perdue, the governor of Georgia, issued an executive order for all its state agencies to reduce water use during a major
drought A drought is defined as drier than normal conditions.Douville, H., K. Raghavan, J. Renwick, R.P. Allan, P.A. Arias, M. Barlow, R. Cerezo-Mota, A. Cherchi, T.Y. Gan, J. Gergis, D.  Jiang, A.  Khan, W.  Pokam Mba, D.  Rosenfeld, J. Tierney, an ...
. The same was demanded of its counties' water systems as well, but it was unclear whether the 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. Such orders carry the same force of law as executive orders, the difference between being that executive orders are aimed at those inside government, but proclamations are aimed at those outside government. The administrative weight of those 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 that proclamations are largely ceremonial or symbolic in nature. However, the legal weight of presidential proclamations suggests their importance to presidential governance.Presidential Proclamations Project
University of Houston, Political Science Dept.


See also

*
Decree A decree is a legal proclamation, usually issued by a head of state (such as the president of a republic or a monarch), according to certain procedures (usually established in a constitution). It has the force of law. The particular term used ...
* Delegated legislation *
List of United States federal executive orders Executive orders issued by presidents of the United States to help officers and agencies of the executive branch manage operations within the community. At the federal level of government in the United States, laws are made almost exclusively by ...
* Military fiat * Order in council * Ordonnance * Presidential determination *
Presidential directive A presidential directive, or executive action, is a written or oral instruction or declaration issued by the president of the United States, which may draw upon the powers vested in the president by the U.S. Constitution, statutory law, or, in ce ...
*
Presidential memorandum A presidential memorandum is a type of directive issued by the president of the United States to manage and govern the actions, practices, and policies of the various departments and agencies found under the executive branch of the United Stat ...
* Presidential proclamation * Signing statement (United States) *
Ukase In Imperial Russia, a ukase () or ukaz (russian: указ ) was a proclamation of the tsar, government, or a religious leader ( patriarch) that had the force of law. "Edict" and " decree" are adequate translations using the terminology and concep ...


References


Further reading

* Bush, Ann M., "Executive Disorder: The Subversion of the United States Supreme Court, 1914-1940" mazon 2010. * 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

Executive Orders: Issuance and Revocation

Executive Orders at The American Presidency Project

Executive Orders and Other Presidential Documents: Sources and Explanations

Presidential Proclamations Project

Governor of Missouri's executive orders 2012-1982

Federal Register: The Daily Register of the United States Government

White House: List of executive orders of the current US administration shortly after issue
{{Authority control Executive branch of the government of the United States Public administration Sources of law United States federal law