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Presidential Executive Orders

'The Executive Power shall be vested in...'

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The Department of Homeland Security was created completely by an executive order.

An executive order was used to create the massive new Department of Homeland Security.

Win McNamee/Getty Images

A presidential executive order (EO) is a directive issued to federal agencies, department heads, or other federal employees by the President of the United States under his statutory or constitutional powers.

In many ways, presidential executive orders are similar to written orders, or instructions issued by the president of a corporation to its department heads or directors.

Thirty days after being published in the Federal Register, executive orders take effect. While they do bypass the U.S. Congress and the standard legislative law making process, no part of an executive order may direct the agencies to conduct illegal or unconstitutional activities.

President George Washington issued the first executive order in 1789. Since then, all U.S. presidents have issued executive orders, ranging from Presidents Adams, Madison and Monroe, who issued only one each, to President Franklin D. Roosevelt, who issued 3,522 executive orders.

Reasons for Issuing Executive Orders

Presidents typically issue executive orders for one of these purposes:

1. Operational management of the executive branch
2. Operational management of federal agencies or officials
3. To carry out statutory or constitutional presidential responsibilities
  • Shortly after the December 7, 1941 attack on Pearl Harbor, President Franklin D. Roosevelt issued Executive Order 9066, directing the interment of more than 120,000 Japanese Americans, many of whom were U.S. citizens.
Can Executive Orders be Overridden or Withdrawn?

The president can amend or retract an executive at any time. The president may also issue an executive order superseding an existing one. New incoming presidents may choose to retain the executive orders issued by their predecessors, replace them with new ones of their own, or revoke the old ones completely. In extreme cases, Congress may pass a law that alters an executive order, and they can be declared unconstitutional and vacated by the Supreme Court.

Executive Orders vs. Proclamations

Presidential proclamations differ from executive orders in that they are either ceremonial in nature or deal with issues of trade and may or may not carry legal effect. Executive orders have the legal effect of a law.

Constitutional Authority for Executive Orders

Article II, section 1 of the U.S. Constitution reads, in part, "The executive power shall be vested in a president of the United States of America." And, Article II, section 3 asserts that, "The President shall take care that the laws be faithfully executed..." Since the Constitution does not specifically define executive power, critics of executive orders argue that these two passages do not imply constitutional authority. But, Presidents of the United States since George Washington have argued that they do and have used them accordingly.

Modern Use of Executive Orders

Until World War I, executive orders were used for relatively minor, usually unnoticed acts of state. That trend changed drastically with passage of the War Powers Act of 1917. This act passed during WWI granted the president temporary powers to immediately enact laws regulating trade, economy, and other aspects of policy as they pertained to enemies of America. A key section of the War Powers act also contained language specifically excluding American citizens from its effects.

The War Powers Act remained in effect and unchanged until 1933 when a freshly elected President Franklin D. Roosevelt found America in the panic stage of the Great Depression. The first thing FDR did was to convene a special session of Congress where he introduced a bill amending the War Powers Act to remove the clause excluding American citizens from being bound by its effects. This would allow the President to declare "national emergencies" and unilaterally intact laws to deal with them. This massive amendment was approved by both houses of Congress in less than 40 minutes without debate. Hours later, FDR officially declared the depression a "national emergency" and stared issuing a string of executive orders that effectively created and implemented his famed "New Deal" policy.

While some of FDR's actions were, perhaps, constitutionally questionable, history now acknowledges them as having helped to avert the people's growing panic and starting our economy on its way to recovery.

Presidential Directives and Memorandums Same as Executive Orders

Occasionally, presidents issue orders to executive branch agencies through "presidential directives" or "presidential memorandums," instead of executive orders. In January 2009, the U.S. Department of Justice issued a statement declaring presidential directives (memorandums) to have exactly the same effect as executive orders.

"A presidential directive has the same substantive legal effect as an executive order. It is the substance of the presidential action that is determinative, not the form of the document conveying that action," wrote acting U.S. Assistant Attorney General Randolph D. Moss. "Both an executive order and a presidential directive remain effective upon a change in administration, unless otherwise specified in the document, and both continue to be effective until subsequent presidential action is taken."

A Fanciful Application

In author Tom Clancy's best-selling novel Executive Orders, written five years before September 11, 2001, a terrorist crashes a jetliner into the U.S. Capitol Building. The president, vice president, most of Congress, Cabinet members and the Supreme Court are killed in the attack. Amazingly, Clancy's hero, ex-Marine and CIA agent, Jack Ryan finds himself appointed president. Besides having to deal with the Iranians, who are about to attack the world with Ebola virus, Jack is also driven from within to effect massive reforms of the entire federal government. Ho, hum, another day, another crisis. Some 800 pages later, he's achieved peace, prosperity and great government, mostly by issuing a series of really killer presidential executive orders.

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