Executive order

Not to be confused with Presidential proclamation.
Leland-Boker Authorized Edition of the Emancipation Proclamation, printed in June 1864 with a presidential signature

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).[1] 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 wars, and in general fine-tuning policy choices in the implementation of broad statutes.

Basis in the United States Constitution

There is no constitutional provision nor statute that explicitly permits executive orders. The term executive power in Article II, Section 1, Clause 1 of the Constitution refers to the office of President as the executive. They are 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 reasonings as the authorization allowing for their issuance to be justified as part of the President's sworn duties,[2] 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 removal from office.[3]

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.[4]

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.[5]

Other types of orders issued by "the Executive" are generally classified simply as administrative orders rather than executive orders.[6] 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.[7] Some types of Presidential directives are the following:

History and use

President Number
issued[8]		 Starting with
E.O. number[8]
George Washington 8 n/a
John Adams 1 n/a
Thomas Jefferson 4 n/a
James Madison 1 n/a
James Monroe 1 n/a
John Quincy Adams 3 n/a
Andrew Jackson 12 n/a
Martin van Buren 10 n/a
William Henry Harrison 0 n/a
John Tyler 17 n/a
James K. Polk 18 n/a
Zachary Taylor 5 n/a
Millard Fillmore 12 n/a
Franklin Pierce 35 n/a
James Buchanan 16 n/a
Abraham Lincoln 48
Andrew Johnson 79
Ulysses S. Grant 217
Rutherford B. Hayes 92
James Garfield 6
Chester Arthur 96
Grover Cleveland (first term) 113
Benjamin Harrison 143
Grover Cleveland (second term) 140
William McKinley 185
Theodore Roosevelt 1,081
William Howard Taft 724
Woodrow Wilson 1,803
Warren G. Harding 522
Calvin Coolidge 1,203
Herbert Hoover 968 5075
Franklin D. Roosevelt 3,522 6071
Harry S. Truman 907 9538
Dwight D. Eisenhower 484 10432
John F. Kennedy 214 10914
Lyndon B. Johnson 325 11128
Richard Nixon 346 11452
Gerald R. Ford 169 11798
Jimmy Carter 320 11967
Ronald Reagan 381 12287
George H. W. Bush 166 12668
Bill Clinton[9] 308 12834
George W. Bush[9] 291 13198
Barack Obama (as of November 10, 2016)[9] 261 13489

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.[10] 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.[11]

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 October 20, 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".[6]

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 a 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 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.[8]

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.

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 June 15, he issued Executive Order 7075, which terminated NIRA and replaced it with the Office of Administration of the National Recovery Administration.[12]

Roosevelt's Supreme Court of Justices Hugo Black, Stanley Reed, Felix Frankfurter, William O. Douglas, Frank Murphy and James F. Byrnes was sympathetic to the President's choices. Only George Washington had had equal or greater 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.[13]

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.[14]

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 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.[15][16] 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 April 24, 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.[17]

On July 30, 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[18] 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."[19] The suit was filed in the US District Court for the District of Columbia on November 21, 2014.[20]

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)".[21] 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.[22]

See also

References

  1. ↑ John Contrubis, Executive Orders and Proclamations, CRS Report for Congress #95-722A, March 9, 1999, Pp. 1-2
  2. ↑ SCOTUS, Mississippi v. Johnson, 71 U.S. 475 (1866), The Supreme Court's decision held that the president has two kinds of task to perform: ministerial and discretionary. EOs help facilitate the execution of the Executive's ministerial duties.
  3. ↑ SCOTUS, Myers v. United States, 272 U.S. 52 (1926), Majority Opinion.
  4. ↑ 343 U.S. 579, 585. Antieau, Modern Constitutional Law,§13:24 (1969)
  5. ↑ "Executive orders page of the National Archives and Records Administration".
  6. 1 2 Harold C. Relyea, Presidential Directives: Background and Overview, CRS Report for Congress #98-611, Nov. 26, 2008.
  7. ↑ National Security Directives, San Diego State University, Presidential Documents, Retrieved 2009-12-07. Archived June 6, 2009, at the Wayback Machine.
  8. 1 2 3 Gerhard Peters. "The American Presidency Project / Executive Orders". Retrieved 26 August 2015.
  9. 1 2 3 "Executive Orders". Federal Register. Retrieved 2016-11-10.
  10. ↑ 93rd Cong., 2nd sess. (1974). Executive Orders in Times of War and National Emergency: Report of the Special Committee on National Emergencies and Delegated Emergency Powers, United States Senate. U.S. Govt. Print. Off. p. 23.
  11. ↑ Brian R. Dirck (2007). The Executive Branch of Federal Government: People, Process, and Politics. ABC-CLIO. p. 102.
  12. ↑ American Presidency Project, Executive Order 7075 (5/29/2009).
  13. ↑ "Executive Order 13489 of January 21, 2009 — Presidential Records". Retrieved 2009-01-22., Federal Register publication page and date: 74 FR 4669, January 26, 2009.
  14. ↑ Gaziano, Todd F. (2001-02-21). "The Use and Abuse of Executive Orders and Other Presidential Directives". Legal Memorandum #2. Heritage Foundation. Retrieved 2008-10-11.
  15. ↑ Catherine Edwards, "Emergency Rule, Abuse of Power?," Insight on the News, August 23, 1999, Pg. 18
  16. ↑ "Chamber of Commerce of the United States, et al, v. Reich, 74 F.3d 1322 (D.C. Cir. 1996)". Public.Resource.org. Retrieved 7 November 2014.
  17. ↑ Harold Hongju Koh, The National Security Constitution: Sharing Power after the Iran-Contra Affair, 1990, pg. 118–19
  18. ↑ Deirdre Walsh, "GOP-led House authorizes lawsuit against Obama". CNN.com, July 30, 2014
  19. ↑ Michael McAuliff and Sam Levine, "House Authorizes Lawsuit Against President Obama" Huff Post: Politics, July 30, 2014,
  20. ↑ "House G.O.P. Files Lawsuit in Battling Health Law," By ASHLEY PARKERNOV. 21, 2014, The New York Times
  21. ↑ Phillip J. Cooper. 2002. By Order of The President. University of Kansas Press. Page 116.
  22. ↑ Presidential Proclamations Project, University of Houston, Political Science Dept., Retrieved 2009-12-07

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