Executive Orders

Presidents can use executive orders to create laws or to modify laws, rules, and regulations. As an example of law creation, President Truman issued Executive Order 9981 in 1948 to desegregate the military.  In 1965, President Johnson signed Executive Order 11246 to require equal opportunity for minorities in federal contractors’ recruitment, hiring, training, and other employment practices. Other examples of executive orders include the 1863 Emancipation Proclamation used to free enslaved people during the civil war and President Roosevelt’s order in 1942 to force the internment of Japanese citizens during World War Two.  Executive orders have also been used to create federal agencies. The Department of Homeland Security is an example (Executive Order 13228).  Executive orders are also used to modify rules and regulations. These orders may directly specify changes in rules, or they may direct a department or agency to devise changes consistent with presidential policies.  For example, the second Bush administration used Executive Order 13212 to create a task force to monitor and assist the agencies in their efforts to expedite their review of permits or similar actions, as necessary, to accelerate the completion of energy-related projects, increase energy production and conservation, and improve the transmission of energy.

There are many kinds of executive orders. Among these are executive agreements, executive proclamations, military orders, national security findings, secret national security directives, presidential determinations, and presidential memoranda.

Executive orders are an implied power based on the Take Care Clause. They carry the force of law only when they are grounded in an act of Congress or in the Constitution. This requirement was underlined by the Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer (1952).  In that case, President Truman had attempted, as a matter of national security, to take over the country’s steel mills while they were dealing with labor union strikes. The Supreme Court ruled the executive order was unconstitutional because it was not based on any existing laws or constitutional provisions.  Executive orders are therefore built upon interpretations of existing laws and Constitutional clauses.  Many of these interpretations come from the Office of General Counsel located in the Office of Management and Budget, or from the Office of White House Counsel located within the White House staff. 

The courts have been generous in how they assess the constitutionality of various executive orders.  They have allowed for implied powers as well as specifically delegated or shared powers, and even allowed for Congressional support after the fact.  Relatively few executive orders have been struck down by the court system, even when poorly constructed.  On the contrary, by referring to executive orders in judicial proceedings, the courts have helped establish them as legitimate.

The Administrative Procedures Act does not apply to executive orders, but it can apply to agencies acting to implement executive orders. The APA requires executive departments and agencies to hold public hearings for each new regulation and provide citizens with advance notice of those hearings to give us enough time to read and react. In 1992, the Supreme Court held in Franklin v. Massachusetts that a President’s actions are not subject to the APA. In 2020, however, the court ruled that the Department of Homeland Security had not followed APA requirements when implementing the President’s immigration policy.

Executive orders can be nullified by Congress but only with difficulty.  Congress could adopt a law to overturn an executive order, but that law could be vetoed by the President. Congress could then seek to overturn the veto with two-thirds majority votes in the House and the Senate, as required by the Constitution.  Historically, Congress has overridden only ten percent of all presidential vetoes.

Executive orders may seem like an attractive option in the face of Congressional obstruction, but they come at a cost because they are easily reversed by new presidents. The fate of the Presidential Records Act of 1978 is an example of how presidents can modify laws. The 1978 law declared all records of former presidents as the property of the federal government, to be made public 12 years after they left office. When George W. Bush became president, he signed Executive Order 13233, restricting access to presidential records with military, diplomatic, national security, or other sensitive information. The order was later revoked by Barack Obama’s Executive Order 13489. The treatment of enemy combatants is another example.  In November 2001, President George W. Bush signed an executive military order titled the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, which mandated the detention and trial of enemy combatants by military commissions, including at Guantanamo Bay. In January of 2009, President Barack Obama signed an executive order, calling for a review of all prisoners held in Guantanamo Bay with the goal of closing the prison within a year. The deadline was not met. In January 2018, President Trump signed his own executive order to keep the prison open indefinitely.  For the 6,158 executive orders issued between 1946 and 2013, one quarter (25%) were revoked, and another 26 percent amended or superseded, often within five to ten years of being issued.  By contrast, only nine percent of 961 laws enacted by Congress between 1877 and 2012 were repealed.  The difference in outcomes is natural: it is difficult to convince enough members of both houses of Congress to support a repeal rather than work on other legislation, whereas a determined president can act at any time.

There may be an additional cost in terms of public approval.  There is evidence that presidential approval ratings are negatively affected when presidents use executive orders too often.[13]  Many Americans, it seems, become nervous when presidents act unilaterally.  This evidence may help explain part of the observed drop in trust for the presidency. The increased use of executive orders to bypass a divided Congress will only make the trend worse.

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