The U.S. Constitution gives the American President authority to create laws, or decide how an existing law should be carried out, through the use of executive orders. Because executive orders do not require congressional approval, the President can set important policy while sidestepping public debate. Executive orders may be used for a broad range of issues, from environmental conservation and protection, to prohibiting discrimination, and sending troops to other countries. To explore this concept, consider the following executive order definition.
Definition of Executive Order
- An order made by a U.S. President, or a government agency, that has the same force of law.
What is an Executive Order
The President of the United States is endowed with the authority to make certain types of law without going through the normal legislative process, which requires congressional approval. These laws, signed by the President, are called executive orders, and they have been used by every president since the inception of the nation. Many executive orders are made to give guidance to federal agencies in carrying out their duties, or to expand their duties.
Executive orders are not voted on, nor approved by the people, nor by their congressional representatives. Once signed by a sitting president, the order immediately becomes law. Advisor to President Bill Clinton, Paul Begala, once boiled down the awesomeness of this presidential authority in a succinct statement: “Stroke of the pen. Law of the land. Kinda cool.”
An executive order may be issued for any domestic policy issue, as long as it does not step on the toes of Congress’ powers under the Constitution. For example, an executive order cannot be made to regulate interstate commerce, or commerce with other nations, as this power is reserved for Congress.
Historic Use of Executive Orders
Executive orders are used quite often to deal with a host of routine administrative issues related to the internal operations of the federal government. Such matters may include anything from creating or amending rules or policies for federal employees, to issuing orders to clarify an agency’s responsibilities in carrying out some legislation. A number of renowned laws have been issued through executive order, however. For example, many people don’t realize that the Emancipation Proclamation was an executive order issued by President Abraham Lincoln.
Other historic uses of executive orders include Executive Order No. 11063, signed on November 20, 1962 by President John F. Kennedy, which prohibited racial discrimination in federally funded housing. On September 24, 1969, President Lyndon B. Johnson signed Executive Order No. 11246, which banned discrimination in government hiring of contractors.
Executive Order Examples in Recent History
Recent history has seen presidents using executive orders to plow through congressional sluggishness and red tape to deal swiftly with important issues plaguing the American people. Examples of executive order use include President Ronald Reagan’s 1987 issuance of Executive Order No. 12601, which created the President’s Commission on the HIV Epidemic, and his 1988 issuance of Executive Order 12631, which sought to address the precarious financial markets of the U.S.
President George W. Bush signed Executive Order No. 13470, which gave new teeth to a domestic surveillance order issued by President Reagan. This post-9/11 example of executive order use approved more aggressive surveillance by federal agencies, and limited the public’s access to presidential documents.
Controversy Over President Obama’s Use of the Executive Order
Democrat President Barak Obama, on his first day in office, signed three executive orders, making it clear that the policies of his presidency would not be the same as those of his predecessor. President Obama quickly discovered he faced a Congress dominated by obstinate Republican members, which would continually refused to even vote on any legislation brought by his administration’s strategies to deal with the nation’s troubled economy, education, job creation, energy, and foreign policy.
During a 2011 address before the students of the University of Colorado, Denver, President Obama announced his intentions to provide 1.6 million college students a way to repay their federal student loans. This plan also sought to pave the way for thousands of veterans to find jobs, and for a million homeowners to meet their mortgage obligations. Expressing his frustration over Congress’ refusal to act, Obama said, “We can’t wait for Congress to do its job. So where they won’t act, I will.”
Again, as Obama spoke on the economy in Austin, Texas on July 10, 2014, he talked about the difficulty in creating change in the current congressional climate:
“The hardest thing to change in politics is a stubborn status quo. Our democracy is designed where folks who have power, who have clout – they can block stuff, they can keep things as they are. It’s hard.”
By that point, three years into his presidency, President Obama had turned his back on Congress’ posturing, determining to get things done any way he could. While the use of executive orders to accomplish his goals limited the scope of Obama’s actions, it enabled him to flex his presidential muscles, as he sped by the mulish Republicans.
President Obama continued to move the nation’s business forward, issuing approximately 250 executive orders during his eight-year presidency. These executive orders covered subjects ranging from national security issues and sanctions on foreign nations, to internet use, privacy, and civil rights issues.
What Cannot Be Done by Executive Order
In times of crisis, the U.S. President may issue executive orders, overriding Congress, on a nearly limitless scope. Many presidents have done so, including President Lincoln’s use of an executive order to fight the Civil War, President Woodrow Wilson issued an executive order to arm the United States in preparation for WWI, and President Franklin Roosevelt’s executive order created Japanese internment camps after the Japanese bombed Pearl Harbor, and the U.S. entered WWII.
While all of these actions were considered valid, considering the emergency nature of the times, there are definitely limitations on what a president can do by executive order, especially in the absence of an emergency that relates to such orders. Because of the separation of powers delineated by the Constitution, a president cannot do any of the following by executive order:
- Establish taxes, or raise them
- Borrow or spend money on behalf of the nation
- Create, change, or interfere in marriage or divorce laws
- Declare war
- Deprive citizens of “life, liberty, or property”
Conflict arises over executive orders when the president acts in opposition to the limitations placed on presidential authority, or when he or she has not been given power to act. While executive power is vague, or undefined, in certain areas, both Congress and the President have constitutional authority, under the Necessary and Proper Clause, to do what is necessary to carry out the laws and duties of each office.
Difference Between an Executive Order and a Presidential Memorandum
Both the Executive Order, and Presidential Memorandum, also known as “Executive Memorandum,” are forms of executive action that may be taken by a sitting U.S. President. There is understandably some confusion over these actions, as there is no actual constitutional provision or law that defines or permits either the executive order or presidential memorandum. Both, however, carry the full force of the law.
The issue of the difference between executive orders and Presidential Memoranda was brought to light before the American public, as President Obama engaged in the use of both types of order to get things done when faced with an uncooperative Congress. Some people argue that President Obama had taken unilateral action, even as he claimed to have used the executive order less frequently than other presidents.
In fact, according to the American Presidency Project, an ongoing study undertaken by the University of California, Santa Barbara, as of June, 2016, President Obama had signed a total of 244 executive orders, which is indeed fewer than his contemporaries.
|Total Orders||Years in Office||
|Franklin D. Roosevelt||
|Harry S. Truman||
|William Howard Taft||
|George W. Bush||
(at time of counting)
While President Obama issued more than 560 presidential memoranda during his presidency, a great many of those addressed normal operations of the executive branch of the federal government. In response to criticisms about his use of executive actions, President Obama said:
“The history is that I have issued fewer executive actions than most of my predecessors, by a long shot. The difference is the response of Congress – and specifically the response of some of the Republicans … If you ask historians, take a look at the track records of the modern presidency, I’ve actually been very restrained.”
Example of Executive Order Controversy in Gun Control
In January, 2016, President Barak Obama took executive action to broaden the scope of who is considered to be a “gun dealer” under the law, as part of an initiative to prevent criminals and mentally ill people from buying firearms. By executive order, President Obama gave funding to the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) so that they could put more agents into the field, and instructed federal prosecutors to focus on strict enforcement of existing gun laws.
The initiative requires gun dealers to promptly report lost or stolen firearms, and sought to tear down legal barriers to disclosure of mental health issues for the purpose of background checks for gun purchases. This comes on the heels of reports that deaths by gun violence have reached the number of deaths caused by automobile accidents in the U.S.
Shortly following the announcement of the orders for stricter interpretation of, and action on, gun laws, political activist, founder of Freedom Watch, and attorney, Larry Klayman, filed a lawsuit in the federal court, claiming that the changes made by executive action are unconstitutional, as they violate the federal rule-making process. In what many believe will be a series of legal challenges to Obama’s use of executive orders, Klayman argues in his complaint:
“These actions are unconstitutional abuses of the president’s and executive branch’s role in our nation’s constitutional architecture and exceed the powers of the president as set forth in the U.S. Constitution.”
This lawsuit names as defendants, in addition to the President, Attorney General Loretta Lynch, and Thomas Brandon, director of the ATF.
Related Legal Terms and Issues
- Interstate Commerce – The purchase, sale, or exchange of commodities; transportation of people, money, or goods; and navigation of waters between different states.
- Sanctions Against an Entity – A threatened or actual penalty for disobeying a law or rule.