Americans often hear about executive orders in media coverage of national politics these days, especially when the president and Congress disagree on policy.
But what exactly is an executive order?
And why was it such a big deal, for example, that President Barack Obama moved to protect millions of illegal immigrants from deportation using his executive powers?
Put simply, an executive order is a type of written instruction that presidents use to work their will through the executive branch of government.
From George Washington on, our presidents have issued many forms of directives, the most familiar being executive orders and two others: Presidential memoranda and presidential proclamations. (One proclamation by Abraham Lincoln in 1863, students are taught in school with some oversimplification, “freed the slaves.”)
Each of these forms may direct the actions of government officials and agencies, and possibly affect the legal rights and responsibilities of private parties.
The main difference between them is that federal law requires, with few exceptions, executive orders and proclamations “of general applicability and Legal effect” to be published in the Federal Register, where federal regulations are published. Other directives may be published or not, at the president’s discretion.
Presidential Authority
Under our system of government, the president’s authority to issue such orders (or to engage in any other form of unilateral executive action) must come from the Constitution or federal law. Put another way, an executive order can be used to execute a power the commander in chief already has. It can’t be used to give the presidency new powers.
In particular, Article II of the Constitution assigns the president the roles of commander in chief, head of state, chief law enforcement officer, and head of the executive branch. The president has the sole constitutional obligation to “take care that the laws be faithfully executed,” and is granted broad discretion over federal law enforcement decisions.
“He has not only the power, but also the responsibility to see that the Constitution and laws are interpreted correctly,” Heritage Foundation scholar Todd Gaziano wrote in 2001.
When the president lawfully exercises one of these responsibilities, scholars generally agree, the scope of his authority to issue executive orders and other directives is especially broad. As such, Congress has little ability to regulate or limit that authority.
When a president’s authority comes from power granted by statute, Congress is free to negate or modify that authority, or pass legislation to nullify the order itself, because the Constitution empowers Congress to make the laws that govern us. Still, the president has to sign the law enacting that change, unless Congress is able to override his veto.
Federal courts also may strike down executive orders that exceed the scope of the president’s authority, as an appeals court did with President Bill Clinton’s order forbidding government contracts with businesses that employed strike-breakers, and the Supreme Court did with his order requiring the government to use foreign languages in providing federal benefits and services.
The constitutional basis for the executive order is the President’s broad power to issue executive directives. According to the Congressional Research Service, there is no direct “definition of executive orders, presidential memoranda, and proclamations in the U.S. Constitution, there is, likewise, no specific provision authorizing their issuance.”
But Article II of the U.S. Constitution vests executive powers in the President, makes him the commander in chief, and requires that the President “shall take Care that the Laws be faithfully executed.” Laws can also give additional powers to the President.
While an executive order can have the same effect as a federal law under certain circumstances, Congress can pass a new law to override an executive order, subject to a presidential veto.
Every President since George Washington has used the executive order power in various ways. Washington’s first orders were for executive departments to prepare reports for his inspection, and a proclamation about the Thanksgiving holiday. After Washington, other Presidents made significant decisions via executive orders and presidential proclamations.
President Abraham Lincoln suspended the writ of habeas corpus during the Civil War using executive orders in 1861. Lincoln cited his powers under the Constitution’s Suspension Clause, which states, “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion and invasion the public safety may require it.”
Supreme Court Chief Justice Roger Taney, in his role as a federal circuit judge, ruled that Lincoln’s executive order was unconstitutional in a decision called Ex Parte Merryman. Lincoln and the Union army ignored Taney, and Congress didn’t contest Lincoln’s habeas corpus decisions.
Two other executive orders comprised Lincoln’s Emancipation Proclamation. Lincoln was fearful that the Emancipation Proclamation would be overturned by Congress or the courts after the war’s end, since he justified the proclamation under his wartime powers. The ratification of the 13th Amendment ended that potential controversy.
President Franklin Roosevelt established internment camps during World War II using Executive Order 9066. Roosevelt also used an executive order to create the Works Progress Administration.
And President Harry Truman mandated equal treatment of all members of the armed forces through executive orders. However, Truman also saw one of his key executive orders invalidated by the Supreme Court in 1952, in a watershed moment for the Court that saw it define presidential powers in relation to Congress.
The Court ruled in Youngstown Sheet and Tube Co. v. Sawyer that an executive order putting steel mills during the Korean War under federal control during a strike was invalid. “The President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker,” Justice Hugo Black said in his majority opinion.
It was Justice Robert Jackson’s concurring opinion that stated a three-part test of presidential powers that has since been used in arguments involving the executive’s overreach of powers.
Jackson said the President’s powers were at their height when he had the direct or implied authorization from Congress to act; at their middle ground – the Zone of Twilight, as he put it, when it was unsure which branch could act; and at their “lowest ebb” when a President acted against the expressed wishes of Congress.
The use of executive orders also played a key role in the Civil Rights movement. In 1957, President Dwight Eisenhower used an executive order to put the Arkansas National Guard under federal control and to enforce desegregation in Little Rock. Affirmative action and equal employment opportunity actions were also taken by Presidents Kennedy and Johnson using executive orders.
President Roosevelt issued the most executive orders, according to records at the National Archives. He issued 3,728 orders between 1933 and 1945, as the country dealt with the Great Depression and World War II.
President Truman issued a robust 896 executive orders over almost eight years in office. President Barack Obama issued 277 orders during his presidency. His predecessor, President George W. Bush, issued 291 orders over eight years, while President Bill Clinton had 364 executive orders during his two terms in office.
The most-active President in the post-World War II era, in terms of executive orders, was Jimmy Carter, who averaged 80 orders per year during his four-year term.
Congressional Latitude
Scholars say Congress has some latitude in defining the procedures the president must follow to exercise executive authority. Even so, the Constitution imposes some limits on the lawmakers’ ability to micromanage the president’s decision-making and enforcement of laws.
The constitutional separation of powers among the executive, legislative, and judicial branches not only supports but limits a president’s authority to issue executive orders and other directives. So some friction naturally occurs.
It’s important to consider that the measure of abuse of this presidential authority isn’t the total number of directives, but whether any were illegal or improper.
While Reagan and both Bushes—all Republican presidents—issued significant numbers of executive orders, conservative scholars argue that Democrats Clinton and Obama routinely overstepped their authority to issue such directives in arenas where Congress had not acted.
“Because few reforms can be imposed on a president over his veto,” Gaziano wrote in 2001 as Bush took over from Clinton, “it makes sense for Congress to work with the new president on such reforms rather than overreact to the abuses of the last president.”
Overuse and Abuse of Executive Power
During the Obama presidency, Congress frequently clashed with the executive branch on his use of executive orders and other unilateral actions that he undertook. Obama, however, isn’t the first president to face a backlash.
Some of the more controversial executive orders or actions of the modern presidency include:
1933 – Roosevelt
Franklin Roosevelt’s orders forbidding the hoarding of gold during the Depression and, during World War II, giving the military authority to confine Japanese and German Americans to guarded camps.
1948 – Truman
Truman’s 1948 order racially integrating the armed forces, and his 1952 order putting all steel mills under federal control.
1957 – Eisenhower
Eisenhower’s order desegregating public schools.
