Executive order

In the United States, an executive order is a directive by the president of the United States that manages operations of the federal government.^[1] The legal or constitutional basis for executive orders has multiple sources. Article Two of the United States Constitution gives presidents broad executive and enforcement authority to use their discretion to determine how to enforce the law or to otherwise manage the resources and staff of the executive branch. The ability to make such orders is also based on expressed or implied Acts of Congress that delegate to the president some degree of discretionary power (delegated legislation).^[2] The vast majority of executive orders are proposed by federal agencies before being issued by the president.^[3]

Like both legislative statutes and the regulations promulgated by government agencies, executive orders are subject to judicial review and may be overturned if the orders lack support by statute or the Constitution. Some policy initiatives require approval by the legislative branch, but executive orders have significant influence over the internal affairs of government, deciding how and to what degree legislation will be enforced, dealing with emergencies, waging wars, and in general fine-tuning policy choices in the implementation of broad statutes. As the head of state and head of government of the United States, as well as commander-in-chief of the United States Armed Forces, only the president of the United States can issue an executive order.

Presidential executive orders, once issued, remain in force until they are canceled, revoked, adjudicated unlawful, or expire on their terms. At any time, the president may revoke, modify or make exceptions from any executive order, whether the order was made by the current president or a predecessor. Typically, a new president reviews in-force executive orders in the first few weeks in office.

The United States Constitution does not have a provision that explicitly permits the use of executive orders. Article II, Section 1, Clause 1 of the Constitution simply states: "The executive Power shall be vested in a President of the United States of America." Sections 2 and 3 describe the various powers and duties of the president, including "He shall take care that the Laws be faithfully executed".^[4]

The U.S. Supreme Court has held^[5] that all executive orders from the president of the United States must be supported by the Constitution, whether from a clause granting specific power, or by Congress delegating such to the executive branch.^[6] Specifically, such orders must be rooted in Article II of the US Constitution or enacted by the Congress in statutes. Attempts to block such orders have been successful at times, when such orders either exceeded the authority of the president or could be better handled through legislation.^[7]

The Office of the Federal Register is responsible for assigning the executive order a sequential number, after receipt of the signed original from the White House and printing the text of the executive order in the daily Federal Register and eventually in Title 3 of the Code of Federal Regulations.^[8]

With the exception of William Henry Harrison, all presidents since George Washington in 1789 have issued orders that in general terms can be described as executive orders. Initially, they took no set form and so they varied as to form and substance.^[9]

The first executive order was issued by Washington on June 8, 1789; addressed to the heads of the federal departments, it instructed them "to impress [him] with a full, precise, and distinct general idea of the affairs of the United States" in their fields.^[10][11]

According to political scientist Brian R. Dirck, the most famous executive order was by President Abraham Lincoln when he issued the Emancipation Proclamation on September 22, 1862, which in part contained explicit directions to the Army, the Navy, and other Executive departments:

The Emancipation Proclamation was an executive order, itself a rather unusual thing in those days. Executive orders are simply presidential directives issued to agents of the executive department by its boss.^[12]

Until the early 1900s, executive orders were mostly unannounced and undocumented, and seen only by the agencies to which they were directed.

That changed when the US Department of State instituted a numbering scheme in 1907, starting retroactively with United States Executive Order 1, issued on October 20, 1862, by President Lincoln.^[13] The documents that later came to be known as "executive orders" apparently gained their name from that order issued by Lincoln, which was captioned "Executive Order Establishing a Provisional Court in Louisiana".^[14] That court functioned during the military occupation of Louisiana during the American Civil War, and Lincoln also used Executive Order 1 to appoint Charles A. Peabody as judge and designate the salaries of the court's officers.^[13]

President Harry Truman's Executive Order 10340 placed all the country's steel mills under federal control, which was found invalid in Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952), because it attempted to make law, rather than to clarify or to further a law put forth by the Congress or the Constitution. Presidents since that decision have generally been careful to cite the specific laws under which they act when they issue new executive orders; likewise, when presidents believe that their authority for issuing an executive order stems from within the powers outlined in the Constitution, the order instead simply proclaims "under the authority vested in me by the Constitution".

Wars have been fought upon executive order, including the 1999 Kosovo War during President Bill Clinton's second term in office; however, all such wars have also 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 remain unresolved constitutional issues, but all presidents since the passage of the resolution have complied with its terms, while also maintaining that they are not constitutionally required to do so.

Harry S. Truman issued 907 executive orders, with 1,081 orders made by Theodore Roosevelt, 1,203 orders made by Calvin Coolidge, and 1,803 orders made by Woodrow Wilson. Franklin D. Roosevelt has the distinction of making a record 3,721 executive orders.^[15]

In 2021, President Joseph Biden issued 42 executive orders in the first 100 days of his presidency, more than any other president since Harry Truman.^[16]

Large policy changes with wide-ranging effects have been implemented by executive order, including the racial integration of the armed forces under President Truman.

Two extreme examples of an executive order are Franklin Roosevelt's Executive Order 6102 "forbidding the hoarding of gold coin, gold bullion, and gold certificates within the continental United States", and Executive Order 9066, which delegated military authority to remove any or all people in a military zone (used to target Japanese Americans, non-citizen Germans, and non-citizen Italians in certain regions). The order was then delegated to General John L. DeWitt, and it subsequently paved the way for all Japanese-Americans on the West Coast to be sent to internment camps for the duration of World War II.

President George W. Bush issued Executive Order 13233 in 2001, which restricted public access to the papers of former presidents. The order was criticized by the Society of American Archivists and other groups, who say it "violates both the spirit and letter of existing U.S. law on access to presidential papers as clearly laid down in 44 USC 2201–07", and adding that the order "potentially threatens to undermine one of the very foundations of our nation". President Barack Obama subsequently revoked Executive Order 13233 in January 2009.^[20]

The Heritage Foundation has accused presidents of abusing executive orders by using them to make laws without Congressional approval and moving existing laws away from their original mandates.^[21]

Executive orders issued by state governors are not the same as statutes passed by state legislatures. State 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.^{[38][39][40][41][42]}

Executive orders may, for example, demand budget cuts from state government when the state legislature is not in session, and economic conditions take a downturn, 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 must reduce and may exempt those that are already particularly underfunded or cannot put long-term expenses (such as capital expenditures) off until a later fiscal year. The governor may also call the legislature into special session.

There are also other uses for gubernatorial executive orders. In 2007, for example, Sonny Perdue, the governor of Georgia, issued an executive order for all its state agencies to reduce water use during a major drought. The same was demanded of its counties' water systems as well, but it was unclear whether the order would have the force of law.

According to political expert Phillip J. Cooper, 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)".^[43] Presidents define situations or conditions on situations that become legal or economic truth. Such orders carry the same force of law as executive orders, the difference between being that executive orders are aimed at those inside government, but proclamations are aimed at those outside government.

The administrative weight of those 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 that proclamations are largely ceremonial or symbolic in nature. However, the legal weight of presidential proclamations suggests their importance to presidential governance.^[44]

• Decree
• Delegated legislation
• List of United States federal executive orders
• Military fiat
• Order in council
• Ordonnance
• Presidential determination
• Presidential directive
• Presidential memorandum
• Presidential proclamation
• Signing statement (United States)
• Ukase