Executive Orders: A Presidential Prerogative With Limits

 Summary: This article answers the questions “What is an executive order?” “What is the history of the executive order?” and “What is the legal significance of an executive order?”

Solve this riddle: Every U.S. president, except William Henry Harrison, has issued these. Their subjects include everything from confiscating gold to establishing the Grand Canyon as a national monument. Their legality is often debated.

If you guessed executive orders, you are right! So, what are executive orders, what is their historical relevance, and what are their legal bases and limits?

What is an executive order?

An executive order is a written directive issued by a president with the intent to adjust federal agency-related policy or procedure.

The Constitution does not mention executive orders, and no statute granting broad authority to issue them exists, but nearly every president has utilized this method of presidential directive — with varying success.

The president derives the power to issue executive orders from Article 2 of the Constitution or as delegated by Congress.

Presidential directives can be called proclamations, executive memoranda, or executive orders, and though there are trends in why each directive is titled the way it is, generally there are not legally significant distinctions between the three types. Most executive orders are published in the Federal Register, a journal of the day-to-day operations of the government. President John F. Kennedy issued an executive order outlining an official process for executive orders. 

One function of executive orders is to amend or revoke previous presidential directives. Newly inaugurated presidents have historically revoked certain orders of their opposing party’s predecessor, and some directives have been revoked and reinstated many times over the course of several presidential administrations.

What is the history of the executive order?

The first executive order was issued in June of 1789 by President George Washington, in which he directed the nation’s new department heads to write overviews of the roles and responsibilities of their respective departments. Since then, executive orders have covered issues unestablished by law or regulation and adjusted those already established. Consider these three examples of significant orders in history.

The Emancipation Proclamation: One of the most recognized presidential directives initiated the first step toward abolishing slavery. The Emancipation Proclamation issued by President Abraham Lincoln in 1863 ended the Civil War and called for the freeing of enslaved people in the Confederate states.

Mass incarceration of Japanese Americans: Arguably the most infamous of all executive orders was issued by President Franklin D. Roosevelt shortly after the Japanese bombed Pearl Harbor. This edict in February of 1942 forced more than 120,000 people of Japanese ancestry — the majority of whom were American citizens — into internment camps. 

Establish a Homeland Security Office: Responding to the devastating terrorist attacks on the U.S. on September 11, 2001, President George W. Bush issued an executive order creating an Office of Homeland Security within the White House. In 2002 Congress acted to pass the Homeland Security Act, establishing the Department of Homeland Security as a Cabinet-level executive branch agency. 

Presidents have varied in the number of directives they issue, partly due to the circumstances in the nation during their presidencies and partly owing to their particular styles of governance. Some presidents are remembered for being prolific in issuing orders. Before term limits for the office of president and in between world wars and Great Depression recovery, Franklin D. Roosevelt served into his fourth term, or nearly 13 years, and holds the record for number of issued executive orders at 3,726.

Beginning with Ronald Reagan and continuing through Joe Biden’s term, presidents have issued an average of 169 executive orders per four-year term. In his second term, President Trump is setting a precedent concerning executive orders, exceeding the 220 he issued during his entire first term by issuing 269 in only the first 18 months of his second term. He has also revoked more executive orders and memoranda than any other president, primarily by writing two orders that cancelled scores of the previous administration’s policies.

What is the legal significance of executive orders?

An executive order is not a law, but it carries with it the force of law, meaning agencies and government officials will generally act to put it into effect. Even though they prompt government action, executive orders, proclamations, and memorandums issued by U.S. presidents are not pieces of legislation. In order to be considered lawful, executive orders must be based on laws that have already been passed by Congress or on presidential powers in Article 2 of the Constitution.

Presidents have tested their power by issuing executive orders. One such instance occurred when President Harry S. Truman wrote an order to seize all operating steel mills in the country during the Korean War. Truman reasoned that this intervention was necessary for national security purposes in order to avoid a worker strike that could impact the nation’s war efforts. The steel manufacturers sued to challenge the executive order, and in Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court found the order unconstitutional since Truman did not rely on statute or express constitutional authority for the executive order. The majority opinion in Youngstown explained that lawmaking authority is exclusive to Congress, and a concurring opinion from Justice Robert Jackson outlined a framework courts have since relied on for assessing the validity of executive actions.

In the government’s system of checks and balances, the other two branches play critical roles in checking executive power. With lawmaking the responsibility of the legislative branch, Congress can respond to executive orders based on statutory authority in different ways. Congress can show support by ratifying orders with legislation, ensuring the directive cannot be reversed by future administrations. If Congress disapproves of an executive order, it can pass legislation curtailing the president’s authority or restricting funding for the directive. Congress can also simply allow an executive order to stand unchallenged, leaving it open to revocation or alteration by future presidents. The judicial branch checks the constitutionality of existing presidential directives as cases are brought before federal courts. 

Why should citizens take note of executive orders?

Executive orders can be helpful and productive. For example, presidents have used executive orders to convene advisory committees to make policy recommendations on issues their administrations want to prioritize, as President Ronald Reagan did when he established a National Productivity Advisory Committee. Executive orders also function as a tool for presidential influence. President John F. Kennedy first established a temporary Peace Corps within the State Department by executive order in 1961. President Kennedy appealed to Congress to create a permanent Peace Corps, and authorizing legislation was passed later that year.

However, executive orders are vulnerable to abuse of power. They should not circumvent the legislative process or give power to a president to make laws. They are proper only as they relate to the president’s Article 2 powers or where Congress has taken legislative action giving the president authority. Executive orders legally cannot prompt the spending of money that Congress has not allocated. Nevertheless, some presidents have misused the power to give presidential directives.

A sub-principle of Mormon Women for Ethical Government’s principles of ethical governments states, “People in positions of power should not lightly violate or discard long-standing political norms, especially norms that serve to limit the abuse of power.” Our system of government relies on checks and balances, and presidents should be held accountable for their overreaching executive orders by Congress and the courts. We can also hold Congress accountable for delegating its power to a president.

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This article was written by Sherilyn Stevenson, lead researcher and writer, with Leslie Barron, democracy program specialist for Mormon Women for Ethical Government.