By Angelina Clapp, Democracy Program Fellow, JMU ’21, Political Science
What is an Executive Order?
An executive order is a “signed, written and published directive from the President of the United States that manages the operations of the federal government.” Executive orders and other presidential documents are published in the Federal Register to inform the public of the different federal actions enacted by the executive branch. Executive orders are not legislation and they require no approval from congress. Congress cannot overturn them, but they can pass legislation that may make implementation of the executive order difficult, such as removing funding. The format of an executive order is:
- Heading → includes a number and date of issue of the order
- Title → includes what the order concerns
- Introduction → may be long or short and may include quotes or other existing orders or laws and offers the Presidents legal rationale for the order
- Body of the order → includes action steps and other directives
Executive orders fall under the category of executive action. Executive actions include orders and executive memorandums. Executive orders have a formal process where they must be approved by the Office of Management and Budget and the Attorney General. Unlike an executive order, there is no formal process for issuing an executive memorandum and it does not have to be approved by the Office of Management and Budget and by the Attorney General.
What does an Executive Order do?
Although an executive order has the same power as a federal law, there is no explicit language in the Constitution for authorizing the issuance of executive action. However, Article II of the constitution vests, “executive powers in the president, makes him commander in chief, and requires that the president ‘shall take care that the laws be faithfully executed.’” It is in this language that the president pulls the power for executive actions. When issuing an executive order, the president instructs the government to “work within the parameters already set by congress and the constitution.”
There are numerous checks and balances on executive orders. The Supreme Court and lower federal courts can nullify or cancel executive orders on the basis of their constitutionality. Congress can also revoke an executive order by passing new legislation, however this step is difficult due to partisan balances. A famous example of checks and balances on executive orders in action was in 1952 when President Harry Truman issued an executive order directing the Secretary of Commerce to take control of the country’s steel mills during the Korean War. However, in Youngstown Sheet and Tube Co. v. Sawyer, the Supreme Court ruled that the executive order violated the due process clause of the constitution and the executive order was ruled unconstitutional.
How can an executive action be terminated?
A sitting president can rescind an order issued by themselves or a previous president by issuing a new order contradicting it. Congress can also override an executive order by eliminating the funding needed for the order. New presidents have been known to rescind multiple executive orders from their predecessors in their first days in office. President Biden has already rescinded over 31 of President Trump’s executive orders.
Notable Executive Orders
The Emancipation Proclamation was an executive order issued by President Abraham Lincoln on January 1, 1863. It declared freedom for enslaved people throughout the Confederacy. Although this order only freed those enslaved in the Union controlled areas, more people were freed as the Union army continued to win the Civil War.
The Federal Reserve Act of 1913 required the U.S. government to have a certain amount of gold at all times in order to continue to print money. During the Great Depression in 1933, President Roosevelt identified the need for an increase of the government’s cash, necessitating an increase in the amount of gold the government needed. With the signage of Executive Order 6102, Americans had to trade their gold in for cash from the government. Americans who refused to hand their gold over to the government were arrested and served time in jail.
A New Agency Under the New Deal
President Roosevelt issued another executive order to expedite policies under the New Deal. Executive Order 7034 established the Works Progress Administration (WPA), a new government agency meant to create jobs for those unemployed as a result of the Great Depression.
President Roosevelt signed an executive order in 1941 in response to the international race to create an atomic bomb. Executive Order 8807 established the Office of Scientific Research and Development (OSRD), a new agency tasked with creating the first atomic bomb in history.
Japanese-American Concentration Camps
Japan launched a surprise attack on the U.S. Pacific Fleet at Pearl Harbor, officially launching U.S. involvement in World War II. President Roosevelt issued Executive Order 9066, which called for the relocation of all Japanese-Americans to government run concentration camps. The order affected more than 100,000 Japanese-Americans.
President Harry Truman issued Executive Order 10340 that nationalized all American steel mills before the United Steelworkers of America could carry out their strike. Several steel companies sued, and the case went all the way to the Supreme Court, where it was declared unconstitutional.
President Lyndon B. Johnson signed Executive Order 11130 to establish the Warren Commission after the assasination of President John F. Kennedy. The goal of the commission was to investigate the incident and determine Lee Harvey Oswald’s motives.
After President Nixon’s resignation, Vice President Geral Ford assumed the presidency and promptly signed Proclamation 4311, which issued an unconditional pardon of Richard Nixon.
In 1979, President Jimmy Carter signed Executive Order 12148 officially creating the Federal Emergency Management Agency (FEMA). This was meant to consolidate all disaster relief under one agency and after the attacks of September 11th, merged with the Department of Homeland Security.
President George W. Bush established the military prison Guantanamo Bay in order to detain people seen as a threat to America. Conditions in the prison are known to be harsh and many believe that the prison violates the human rights of the people kept in it. In January 2009, President Obama signed Executive order 13493 which called for a review of all detainees and vowed to close the prison within a year. However, this mandate was not completed by the end of his presidency and President Trump signed another order keeping the prison open indefinitely.
In 2014, Obama issued an executive action that offered legal residence to undocumented parents of U.S. citizens and residents who have resided in the U.S. for five years. It also expanded Deferred Action for Childhood Arrivals (DACA).
President Trump signed Executive Order 13769 in January of 2017. This order lowered the number of refugees allowed in the United States and suspended refugee flows from Syria, Iran, Iraq, Libya, Somalia and more. Many viewed this order as a muslim ban and was constitutionally questioned in the Washington v. Trump case but was eventually upheld by the Supreme Court.
Biden’s Executive Orders
- February 02, 2021- Executive Order-Establishment of Interagency Task Force on the Reunification of Families
- February 02, 2021- Executive Order-Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border
- February 02, 2021- Executive Order-Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans
- January 28, 2021- Executive Order-Strengthening Medicaid and the Affordable Care Act
- January 27, 2021- Executive Order-President’s Council of Advisors on Science and Technology
- January 27, 2021- Executive Order-Tackling the Climate Crisis at Home and Abroad
- January 26, 2021- Executive Order-Reforming Our Incarceration System to Eliminate the Use of Privately Operated Criminal Detention Facilities
- January 25, 2021- Executive Order-Enabling All Qualified Americans to Serve Their Country in Uniform
- January 25, 2021- Executive Order-Ensuring the Future Is Made in All of America by All of America’s Workers
- January 22, 2021- Executive Order 14003—Protecting the Federal Workforce
- January 22, 2021- Executive Order 14002—Economic Relief Related to the COVID-19 Pandemic
- January 21, 2021- Executive Order 13995—Ensuring an Equitable Pandemic Response and Recovery
- January 21, 2021- Executive Order 14000—Supporting the Reopening and Continuing Operation of Schools and Early Childhood Education Providers
- January 21, 2021- Executive Order 13999—Protecting Worker Health and Safety
- January 21, 2021- Executive Order 13996—Establishing the COVID-19 Pandemic Testing Board and Ensuring a Sustainable Public Health Workforce for COVID-19 and Other Biological Threats
- January 21, 2021- Executive Order 13998—Promoting COVID-19 Safety in Domestic and International Travel
- January 21, 2021- Executive Order 13994—Ensuring a Data-Driven Response to COVID-19 and Future High-Consequence Public Health Threats
- January 21, 2021- Executive Order 13997—Improving and Expanding Access to Care and Treatments for COVID-19
- January 21, 2021- Executive Order 14001—A Sustainable Public Health Supply Chain
- January 20, 2021-Executive Order 13991—Protecting the Federal Workforce and Requiring Mask-Wearing
- January 20, 2021- Executive Order 13985—Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
- January 20, 2021- Executive Order 13987—Organizing and Mobilizing the United States Government to Provide a Unified and Effective Response To Combat COVID-19 and To Provide United States Leadership on Global Health and Security
- January 20, 2021-Executive Order 13992—Revocation of Certain Executive Orders
- Concerning Federal Regulation
- January 20, 2021- Executive Order 13993—Revision of Civil Immigration Enforcement Policies and Priorities
- January 20, 2021- Executive Order 13986—Ensuring a Lawful and Accurate Enumeration and Apportionment Pursuant to the Decennial Census
- January 20, 2021- Executive Order 13990—Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis
- January 20, 2021- Executive Order 13988—Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation
- January 20, 2021- Executive Order 13989—Ethics Commitments by Executive Branch Personnel
The Impermanence of Government
Because of the impermanence of presidential administrations, executive actions can have a short life span. We’ve seen that when a new president is elected, often of a different party than the previous one, they quickly work to undo most of the executive action taken by the previous administration. In President Biden’s first two days in office, he signed more than 30 executive orders all aimed at erasing Trump’s previous executive mandates. Because President Trump used executive action to carry out much of his policy initiatives, most can be undone with the stroke of a pen. Some of President Trump’s most controversial executive actions have now been reversed, including restoring funding to the World Health Organization; rejoining the Paris Climate accords; reversing the immigration ban from predominantly Muslim countries; stopping border wall construction and revoking the permit for the Keystone XL pipeline. Many modern presidents choose to use their executive action to implement their policy goals rather than working and building relationships within congress. Creating impermanent legislation allows for the next administration to come in and wipe all past achievements completely away, leaving behind no lasting policies for the American people. Others believe that the use of executive action is necessary for a President to show they are serious about implementing their campaign promises. Either way, legacies of previous presidents are often overshadowed by the flood of reversals from new administrations.
Discussion Questions
- How does the use of executive action affect the balance of power between the branches of government?
- Is executive action a productive policy implementation tool?
- Do you believe governing by executive actions is sustainable?
- Are executive orders an abuse of presidential power?
- Does the increase in executive actions and in turn the increase if the impermanence of government undermine the legislative process?
- Do you believe it is more constructive for presidents to carry out their campaign promises immediately, via executive action or through the legislative process with Congress?
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