9.2 Executive Orders and Presidential Directives
4 min read•july 30, 2024
are powerful tools presidents use to direct federal agencies and implement policies without Congress. They've grown in importance as presidents seek to bypass legislative gridlock and assert authority, especially in national security and foreign affairs.
While executive orders carry the force of law, they're subject to constitutional and statutory limits. Courts can review and overturn them, but often defer to executive power. Congress can also check executive orders through legislation and funding restrictions.
Executive Orders: Definition and Legal Basis
Definition and Types of Executive Orders and Directives
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- Executive orders are directives issued by the President to federal agencies, officials, or employees in their capacity as head of the executive branch
- They have the force of law if issued pursuant to a statutory mandate or from Congress
- Presidential directives encompass executive orders as well as other types of unilateral actions by the President
- These include , proclamations, , and
- The legal basis and impact varies by type of directive
Constitutional Authority and Publication Requirements
- The President's authority to issue executive orders and directives stems from both express and implied constitutional powers
- vests "executive power" in the President
- The President is directed to "take care that the laws be faithfully executed"
- Executive orders must be published in the Federal Register per the Federal Register Act
- Other presidential directives may have different or no publication requirements
Executive Orders: Historical Use and Impact
Growth of Executive Orders in the Modern Presidency
- Executive orders have been used by every President since George Washington
- Famous examples include the Emancipation Proclamation, desegregation of the military, internment of Japanese-Americans during WWII, and establishment of the Peace Corps
- The use of executive orders has expanded significantly in the modern presidency due to factors such as:
- Growth of the administrative state
- Congressional gridlock
- Expansion of presidential power, especially in foreign affairs and national security
Policy Impact and Controversies
- Presidents have used executive orders to make major policy changes, direct federal agencies to take certain actions, respond to emergencies, implement legislation, and even create new programs
- This allows Presidents to bypass Congress
- Critics argue the increased use of executive orders to make policy changes violates separation of powers
- Defenders contend they are a necessary tool for the President to "take care that the laws be faithfully executed" in an era of congressional inaction
Limitations on Executive Orders
Constitutional and Statutory Constraints
- As creations of the executive branch, executive orders may not contravene the Constitution or statutes
- They are invalid if they are incompatible with the express or implied will of Congress
- In the Steel Seizure Case (), the Supreme Court laid out a framework for analyzing the validity of executive orders:
- Orders are most likely valid when issued pursuant to express/implied congressional authorization
- In the absence of a congressional grant or denial of authority, the order may be valid in a "zone of twilight" depending on the imperatives of events and the President's
- Orders are likely invalid when issued in the face of congressional disapproval
Judicial Review and Deference to the Executive
- Executive orders are subject to judicial review and may be overturned if a court finds they:
- Violate constitutional rights
- Violate separation of powers
- Exceed statutory authority
- However, courts often defer to the executive branch, especially in matters of:
- National security
- Foreign affairs
- This judicial deference can limit the effectiveness of the courts as a check on executive power
Executive Orders: Congressional and Judicial Oversight
Legislative Checks and Balances
- As a co-equal branch, Congress can pass legislation to modify, overturn, or defund an executive order
- However, any such bill is subject to presidential veto, requiring a 2/3 majority in both houses to override
- Congress also has powers to probe controversial orders
- These include investigations and hearings
- In extreme cases, Congress could potentially impeach a President for issuing unconstitutional orders
- The Power of the Purse is the most potent congressional check
- Congress can restrict funds to agencies to limit their ability to carry out objectionable orders
- However, funding battles often end in political standoffs
Judicial Challenges and Compliance
- Aggrieved parties with standing can challenge executive orders in federal court, arguing they are unconstitutional or exceed statutory authority
- If an order is overturned, the executive branch must comply with the ruling
- However, as noted, courts have historically been deferential to executive power, especially on matters deemed to be within the President's constitutional purview
- This includes areas like foreign affairs and national security
- The effectiveness of judicial review as a check depends on the willingness of courts to scrutinize and overturn problematic orders
Key Terms to Review (18)
Administrative discretion: Administrative discretion refers to the authority granted to government agencies and officials to make decisions within the framework of the law. This flexibility allows them to interpret regulations, adapt policies, and implement rules based on specific circumstances or unique situations, ensuring that the government can effectively address the complexities of governance.
Article II: Article II of the U.S. Constitution establishes the executive branch of the federal government, outlining the powers, responsibilities, and limitations of the President. This article is crucial for understanding the authority of the President in executing laws, conducting foreign affairs, and serving as Commander-in-Chief of the armed forces, as well as other aspects like executive orders and privileges.
Checks and balances: Checks and balances is a system in which different branches of government have the power to monitor and limit each other's actions to prevent any one branch from becoming too powerful. This concept is essential for maintaining the separation of powers and ensuring accountability within the government.
Congressional Review Act: The Congressional Review Act (CRA) is a law enacted in 1996 that allows Congress to review and potentially reject new federal regulations issued by government agencies. It establishes a procedure for Congress to disapprove of regulations through a simple resolution, enabling a streamlined process for oversight of executive agency actions and reinforcing legislative authority over regulatory practices.
Delegation of authority: Delegation of authority is the process by which a governing body or official assigns their powers and responsibilities to another entity or individual. This can occur at various levels of government and is often necessary for efficient governance, allowing those in positions of power to manage large bureaucracies effectively while ensuring accountability. It reflects the understanding that not all decision-making needs to be centralized, enabling specialized agencies or officials to act on behalf of the delegator.
Executive Order 9066: Executive Order 9066 was a United States presidential directive issued by President Franklin D. Roosevelt on February 19, 1942, that authorized the internment of Japanese Americans during World War II. This order granted military authorities the power to designate certain areas as exclusion zones, effectively leading to the forced relocation and incarceration of around 120,000 individuals, most of whom were U.S. citizens.
Executive Order 9981: Executive Order 9981 was a significant directive issued by President Harry S. Truman on July 26, 1948, which mandated the desegregation of the armed forces in the United States. This order aimed to eliminate racial discrimination and promote equality among military personnel, marking a pivotal moment in the civil rights movement and influencing later policies on civil rights.
Executive orders: Executive orders are directives issued by the President of the United States to manage the operations of the federal government. These orders have the force of law and can be used to implement policies, direct government agencies, or manage resources without the need for congressional approval. They play a significant role in shaping public policy and can affect various aspects of governance, from foreign relations to domestic affairs.
Implied powers: Implied powers are those powers not explicitly stated in the Constitution but are necessary for the government to carry out its enumerated responsibilities. These powers allow the federal government to adapt to changing circumstances and effectively function in a modern society, demonstrating the flexibility of the Constitution.
Inherent powers: Inherent powers are the authority and abilities of a government that are not explicitly outlined in the Constitution but are necessary for the government to function effectively and maintain order. These powers often arise from the nature of the state and its responsibilities, such as defending the nation, regulating immigration, and conducting foreign affairs. Inherent powers play a crucial role in understanding the scope of federal authority, especially in the contexts of legislative actions, executive directives, and international agreements.
National security directives: National security directives are official documents issued by the President of the United States that outline policies, priorities, and actions related to national security. These directives help shape the strategic framework for how the executive branch addresses threats and challenges, ensuring a cohesive approach to defense, intelligence, and foreign policy matters.
Oversight: Oversight refers to the process of monitoring and regulating the actions and decisions of government officials and agencies to ensure accountability, legality, and adherence to policy. It is a fundamental aspect of the checks and balances system that helps prevent abuse of power and ensures that executive actions align with legislative intent. Oversight can take various forms, including congressional hearings, investigations, and reports, playing a crucial role in maintaining democratic governance.
Policy directive: A policy directive is an official instruction or guidance issued by the executive branch of government, typically from the president or a designated authority, outlining specific policies or actions to be taken. These directives can help implement laws, shape government priorities, and direct federal agencies in their operations, making them essential tools for executive governance.
Presidential Memoranda: Presidential memoranda are official documents issued by the President of the United States to communicate directives or guidance on policy matters to federal agencies and departments. These memoranda can serve various purposes, including instructing agencies on how to implement existing laws or outlining new initiatives. While similar to executive orders, presidential memoranda are typically less formal and do not require the same level of public notice or publication.
Signing Statements: Signing statements are official pronouncements issued by the President of the United States upon signing a bill into law, often detailing the executive's interpretation of the law and how it will be implemented. These statements can assert the President's intent to enforce certain provisions, ignore others, or raise constitutional objections, playing a significant role in the relationship between the legislative and executive branches.
Take care clause: The take care clause is a provision found in Article II, Section 3 of the U.S. Constitution that mandates the President to 'take Care that the Laws be faithfully executed.' This clause underscores the President's responsibility to enforce and administer federal laws, highlighting the balance of power between the executive branch and other branches of government. It serves as a crucial check on executive authority and implies that the President must uphold the Constitution and laws passed by Congress.
United States v. Nixon: United States v. Nixon was a landmark Supreme Court case in 1974 that addressed the limits of presidential power and the principle of executive privilege. The ruling established that no person, not even the President, is above the law, and affirmed that executive privilege does not grant absolute immunity from judicial process.
Youngstown Sheet & Tube Co. v. Sawyer: Youngstown Sheet & Tube Co. v. Sawyer is a landmark Supreme Court case from 1952 that limited the powers of the President of the United States to seize private property without Congressional approval. This case is significant as it clarified the boundaries of executive power, particularly in relation to national security and labor disputes, and showcased the checks and balances inherent in the U.S. government.