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Executive order

Executive order

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An executive order in the United States
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...

 is an order issued by the President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....

, the head of the executive branch
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...

 of the federal government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...

. In other countries, similar edicts may be known as decree
Decree
A decree is a rule of law issued by a head of state , according to certain procedures . It has the force of law...

s, or orders in council. Executive orders may also be issued at the state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

 level by a state's governor
Governor (United States)
In the United States, the title governor refers to the chief executive of each state or insular territory, not directly subordinate to the federal authorities, but the political and ceremonial head of the state.-Role and powers:...

 or at the local level by the city's mayor
Mayor
In many countries, a Mayor is the highest ranking officer in the municipal government of a town or a large urban city....

. U.S. Presidents have issued executive orders since 1789, usually 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, since issuances are typically made in pursuance of certain Acts of Congress
Act of Congress
An Act of Congress is a statute enacted by government with a legislature named "Congress," such as the United States Congress or the Congress of the Philippines....

, some of which specifically delegate to the President some degree of discretionary power (delegated legislation
Delegated legislation
In the United Kingdom, delegated legislation is legislation or law that is passed otherwise than in an Act of Parliament . Instead, an enabling Act confers a power to make delegated legislation on a Government Minister or another person or body...

), or are believed to take authority from a power granted directly to the Executive by the Constitution. However, these perceived justifications cited by Presidents when authoring Executive Orders have come under criticism for exceeding Executive authority; at various times throughout U.S. history, challenges to the legal validity or justification for an order have resulted in legal proceedings.

Basis in U.S. Constitution


U.S. Presidents have issued executive orders since 1789. Although there is no Constitutional
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

 provision or statute that explicitly permits executive orders, there is a vague grant of "executive power" given in Article II
Article Two of the United States Constitution
Article Two of the United States Constitution creates the executive branch of the government, consisting of the President and other executive officers.-Clause 1: Executive power:...

, Section 1, Clause 1 of the Constitution, and furthered by the declaration "take Care that the Laws be faithfully executed" made in Article II, Section 3, Clause 4. At the minimum, 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, the intent being to help direct officers of the US Executive carry out their delegated duties as well as the normal operations of the Federal Government - the consequence of failing to comply possibly being the removal from office.

Other types of orders issued by 'the Executive' are generally classified simply as administrative orders rather than Executive Orders. These are typically:
  • Presidential Determination
    Presidential Determination
    A Presidential Determination is a document issued by the White House stating a determination resulting in an official policy or position of the executive branch of the United States government...

  • (Presidential) Memorandum
    Presidential memorandum
    A presidential memorandum is a type of presidential order issued by the President of the United States to the executive branch of the United States government. Presidential memoranda do not have an established process for issuance or publication...

  • (Presidential) Notice

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. Some types of Directives are:
  • National Security Directives
  • Homeland Security Presidential Directives
    Presidential directive
    Presidential Directives, better known as Presidential Decision Directives or PDD are a form of an executive order issued by the President of the United States with the advice and consent of the National Security Council...

     (presidential decision directives)

History and use


Until the early 1900s, executive orders went mostly unannounced and undocumented, seen only by the agencies to which they were directed. However, the Department of State
United States Department of State
The United States Department of State , is the United States federal executive department responsible for international relations of the United States, equivalent to the foreign ministries of other countries...

 instituted a numbering scheme
Numbering scheme
There are many different numbering schemes for assigning nominal numbers to entities. These generally require an agreed set of rules, or a central coordinator. The schemes can be considered to be examples of a primary key of a database management system table, whose table definitions require a...

 for executive orders in 1907, starting retroactively with an order issued on October 20, 1862, by President Abraham Lincoln
Abraham Lincoln
Abraham Lincoln was the 16th President of the United States, serving from March 1861 until his assassination in April 1865. He successfully led his country through a great constitutional, military and moral crisis – the American Civil War – preserving the Union, while ending slavery, and...

. The documents that later came to be known as "Executive Orders" probably gained their name from this document, captioned "Executive Order Establishing a Provisional Court in Louisiana."

Until the 1950s, there were no rules or guidelines outlining what the president could or could not do through an executive order. However, the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 ruled in Youngstown Sheet & Tube Co. v. Sawyer
Youngstown Sheet & Tube Co. v. Sawyer
Youngstown Sheet & Tube Co. v. Sawyer, , also commonly referred to as The Steel Seizure Case, was a United States Supreme Court decision that limited the power of the President of the United States to seize private property in the absence of either specifically enumerated authority under Article...

, 343 US 579 (1952) that Executive Order 10340 from President Harry S. Truman
Harry S. Truman
Harry S. Truman was the 33rd President of the United States . As President Franklin D. Roosevelt's third vice president and the 34th Vice President of the United States , he succeeded to the presidency on April 12, 1945, when President Roosevelt died less than three months after beginning his...

 placing all steel mill
Steel mill
A steel mill or steelworks is an industrial plant for the manufacture of steel.Steel is an alloy of iron and carbon. It is produced in a two-stage process. First, iron ore is reduced or smelted with coke and limestone in a blast furnace, producing molten iron which is either cast into pig iron or...

s in the country under federal control was 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.

Wars have been fought upon executive order, including the 1999 Kosovo War
Kosovo War
The term Kosovo War or Kosovo conflict was two sequential, and at times parallel, armed conflicts in Kosovo province, then part of FR Yugoslav Republic of Serbia; from early 1998 to 1999, there was an armed conflict initiated by the ethnic Albanian "Kosovo Liberation Army" , who sought independence...

 during Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...

'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
War Powers Resolution
The War Powers Resolution of 1973 is a federal law intended to check the power of the President in committing the United States to an armed conflict without the consent of Congress. The resolution was adopted in the form of a United States Congress joint resolution; this provides that the...

 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.

Criticisms


Critics have 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.
Large policy changes with wide-ranging effects have been effected through executive order, including the integration
Racial integration
Racial integration, or simply integration includes desegregation . In addition to desegregation, integration includes goals such as leveling barriers to association, creating equal opportunity regardless of race, and the development of a culture that draws on diverse traditions, rather than merely...

 of the armed forces
Military of the United States
The United States Armed Forces are the military forces of the United States. They consist of the Army, Navy, Marine Corps, Air Force, and Coast Guard.The United States has a strong tradition of civilian control of the military...

 under Harry Truman and the desegregation
Desegregation
Desegregation is the process of ending the separation of two groups usually referring to races. This is most commonly used in reference to the United States. Desegregation was long a focus of the American Civil Rights Movement, both before and after the United States Supreme Court's decision in...

 of public schools
Public education
State schools, also known in the United States and Canada as public schools,In much of the Commonwealth, including Australia, New Zealand, South Africa, and the United Kingdom, the terms 'public education', 'public school' and 'independent school' are used for private schools, that is, schools...

 under Dwight D. Eisenhower
Dwight D. Eisenhower
Dwight David "Ike" Eisenhower was the 34th President of the United States, from 1953 until 1961. He was a five-star general in the United States Army...

.

One extreme example of an executive order is Executive Order 9066
Executive Order 9066
United States Executive Order 9066 was a United States presidential executive order signed and issued during World War II by U.S. President Franklin D. Roosevelt on February 19, 1942 authorizing the Secretary of War to prescribe certain areas as military zones...

, where Franklin D. Roosevelt
Franklin D. Roosevelt
Franklin Delano Roosevelt , also known by his initials, FDR, was the 32nd President of the United States and a central figure in world events during the mid-20th century, leading the United States during a time of worldwide economic crisis and world war...

 delegated military authority to remove any or all people (used to target specifically Japanese American
Japanese American
are American people of Japanese heritage. Japanese Americans have historically been among the three largest Asian American communities, but in recent decades have become the sixth largest group at roughly 1,204,205, including those of mixed-race or mixed-ethnicity...

s and German American
German American
German Americans are citizens of the United States of German ancestry and comprise about 51 million people, or 17% of the U.S. population, the country's largest self-reported ancestral group...

s) in a military zone. The authority delegated to General
General (United States)
In the United States Army, United States Air Force, and United States Marine Corps, general is a four-star general officer rank, with the pay grade of O-10. General ranks above lieutenant general and below General of the Army or General of the Air Force; the Marine Corps does not have an...

 John L. DeWitt
John L. DeWitt
John Lesesne DeWitt was a general in the United States Army, best known for his vocal support of the internment of Japanese-Americans during World War II....

 subsequently paved the way for all Japanese-Americans on the West Coast
West Coast of the United States
West Coast or Pacific Coast are terms for the westernmost coastal states of the United States. The term most often refers to the states of California, Oregon, and Washington. Although not part of the contiguous United States, Alaska and Hawaii do border the Pacific Ocean but can't be included in...

 to be sent to internment camps
Internment
Internment is the imprisonment or confinement of people, commonly in large groups, without trial. The Oxford English Dictionary gives the meaning as: "The action of 'interning'; confinement within the limits of a country or place." Most modern usage is about individuals, and there is a distinction...

 for the duration of World War II.

Executive Order 13233
Executive Order 13233
Executive Order 13233 limited access to the records of former United States Presidents. It was drafted by then White House Counsel Alberto Gonzales and issued by George W. Bush on November 1, 2001...

, which restricted public access to the papers of Presidents Reagan and George H.W. Bush, was more recently criticized by the Society of American Archivists
Society of American Archivists
The Society of American Archivists is the oldest and largest archivist association in North America, serving the educational and informational needs of more than 5,000 individual and institutional members...

 and other groups, stating that it "violates both the spirit and letter of existing US law on access to presidential papers as clearly laid down in 44 USC.
United States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...

 2201–07," and adding that the order "potentially threatens to undermine one of the very foundations of our nation." Executive Order 13233 was later revoked by President Obama.

It is quite common for U.S. Presidents to issue executive orders that instruct federal agencies to promulgate administrative regulations in order to circumvent the legislative process in the US Congress altogether, though, as alluded to above, this can violate the US Constitution in a number of ways. US Presidents are quite aware that US congressional politics can defeat or otherwise prevent the passage of legislation presidents deem politically important. In this regard, US Presidents have issued executive orders calling upon federal agencies, such as the US Environmental Protection Agency (EPA) and the US Department of Energy
United States Department of Energy
The United States Department of Energy is a Cabinet-level department of the United States government concerned with the United States' policies regarding energy and safety in handling nuclear material...

 (DOE), to amend administrative regulations where the political process of adopting new congressional legislation necessary to implement multilateral environmental regulatory treaty obligations a president wishes for the US to assume would prevent US ratification of/accession to that treaty.

Legal conflicts


To date, U.S. courts have overturned only two executive orders: the aforementioned Truman order, and a 1995 order issued by President Clinton that attempted to prevent the U.S. government from contracting with organizations that had strike-breakers on the payroll. Congress was able to overturn an executive order by passing legislation in conflict with it during the period of 1939 to 1983 until the Supreme Court ruled in Immigration and Naturalization Service v. Chadha
Immigration and Naturalization Service v. Chadha
Immigration and Naturalization Service v. Chadha, 462 U.S. 919 , was a United States Supreme Court case ruling in 1983 that the one-house legislative veto violated the constitutional separation of powers.-Parties:...

that the "legislative veto" represented "the exercise of legislative power" without "bicameral passage followed by presentment to the President." The loss of the legislative veto has caused Congress to look for alternative measures to override executive orders such refusing to approve 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
Supermajority
A supermajority or a qualified majority is a requirement for a proposal to gain a specified level or type of support which exceeds a simple majority . In some jurisdictions, for example, parliamentary procedure requires that any action that may alter the rights of the minority has a supermajority...

 vote required and the fact that such a vote leaves individual lawmakers very vulnerable to political criticism.

State governors' executive orders



Executive orders as issued by the governors
Governor (United States)
In the United States, the title governor refers to the chief executive of each state or insular territory, not directly subordinate to the federal authorities, but the political and ceremonial head of the state.-Role and powers:...

 of the states
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

 are not laws, but do have the same binding nature. 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
State governments of the United States
State governments in the United States are those republics formed by citizens in the jurisdiction thereof as provided by the United States Constitution; with the original 13 States forming the first Articles of Confederation, and later the aforementioned Constitution. Within the U.S...

 when the state legislature is not in session, and economic conditions take a downturn
Recession
In economics, a recession is a business cycle contraction, a general slowdown in economic activity. During recessions, many macroeconomic indicators vary in a similar way...

, 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
Government agency
A government or state agency is a permanent or semi-permanent organization in the machinery of government that is responsible for the oversight and administration of specific functions, such as an intelligence agency. There is a notable variety of agency types...

 must reduce by, and may exempt those that are already particularly underfunded, or cannot put long-term expenses (such as capital expenditure
Capital expenditure
Capital expenditures are expenditures creating future benefits. A capital expenditure is incurred when a business spends money either to buy fixed assets or to add to the value of an existing fixed asset with a useful life extending beyond the taxable year...

s) off until a later fiscal year. The governor may also call the legislature into special session
Special session
In a legislature, a special session is a period when the body convenes outside of the normal legislative session. This most frequently occurs in order to complete unfinished tasks for the year , such as outlining the government's budget for the next fiscal year, biennium, or other period...

.

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
Government of Georgia (U.S. state)
The state government of Georgia is the U.S. state governmental body established by the Georgia State Constitution. It is a republican government with three branches: the legislature, executive, and judiciary...

 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


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)." 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.

See also

  • Delegated legislation
    Delegated legislation
    In the United Kingdom, delegated legislation is legislation or law that is passed otherwise than in an Act of Parliament . Instead, an enabling Act confers a power to make delegated legislation on a Government Minister or another person or body...

  • List of United States federal executive orders
  • Presidential Proclamation
    Presidential Proclamation
    A Presidential Proclamation is a statement issued by a President on a matter of public policy. They are generally defined as, "The act of causing some state matters to be published or made generally known...

  • Presidential Determination
    Presidential Determination
    A Presidential Determination is a document issued by the White House stating a determination resulting in an official policy or position of the executive branch of the United States government...

  • Presidential Memorandum
    Presidential memorandum
    A presidential memorandum is a type of presidential order issued by the President of the United States to the executive branch of the United States government. Presidential memoranda do not have an established process for issuance or publication...

  • Presidential Directive
    Presidential directive
    Presidential Directives, better known as Presidential Decision Directives or PDD are a form of an executive order issued by the President of the United States with the advice and consent of the National Security Council...

  • Signing statement (United States)
  • Order in Council

Further reading

  • Cooper, Phillip J., By Order of the President: The Use and Abuse of Executive Direct Action, Kansas State University
    Kansas State University
    Kansas State University, commonly shortened to K-State, is an institution of higher learning located in Manhattan, Kansas, in the United States...

    , Kanniversity Press, 2002.
  • Howell, William G., Power without Persuasion: The Politics of Direct Presidential Action, Princeton University
    Princeton University
    Princeton University is a private research university located in Princeton, New Jersey, United States. The school is one of the eight universities of the Ivy League, and is one of the nine Colonial Colleges founded before the American Revolution....

     Press
    Princeton University Press
    -Further reading:* "". Artforum International, 2005.-External links:* * * * *...

    , 2003.
  • Mayer, Kenneth R., With the Stroke of a Pen: Executive Orders and Presidential Power, Princeton University Press, 2002.
  • Warber, Adam L., Executive Orders and the Modern Presidency: Legislating from the Oval Office, Lynne Rienner Publishers, 2006.

External links