What can a president do with an executive order?

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Nominations
Executive Orders
The Extent of the President's Powers

In its first three articles, the U.S. Constitution outlines the branches of the U.S. Government, the powers that they contain and the limitations to which they must adhere. Article II outlines the duties of the Executive Branch.

The President of the United States is elected to a four-year term by electors from every state and the District of Columbia. The electors make up the Electoral College, which is comprised of 538 electors, equal to the number of Representatives and Senators that currently make up Congress. The citizens of each state vote for slates of electors who then vote for the President on the prescribed day, selected by Congress.

To become President, a person must be a natural born citizen of the United States. Naturalized citizens are ineligible, as are persons under the age of 35. In the case that the President should be unable to perform his duties, the Vice-President becomes the President. Amendment XXII placed a two-term limit on the presidential office.

War Powers

Congress holds the power to declare war. As a result, the President cannot declare war without their approval. However, as the Commander in Chief of the armed forces, Presidents have sent troops to battle without an official war declaration (which happened in Vietnam and Korea). The 1973 War Powers Act attempted to define when and how the President could send troops to battle by adding strict time frames for reporting to Congress after sending troops to war, in addition to other measures, however it has not had much effect (see "War Powers Resolution" section in the Commander in Chief Powers article).

Nominations

The President is responsible for nominating candidates for the head positions of government offices. The President will typically nominate cabinet officials and secretaries at the beginning of his or her presidency and will fill vacancies as necessary. In addition, the President is responsible for nominating Federal Circuit Court judges and Supreme Court justices and choosing the chief justice. These nominations must be confirmed by the Senate. While the President usually has broad appointment powers, subject to Senate approval, there are some limitations. In National Labor Relations Board v. SW General Inc. (2017), the Supreme Court found that the "Federal Vacancies Reform Act of 1998 [FVRA], which prevents a person who has been nominated to fill a vacant office requiring presidential appointment and Senate confirmation from performing the duties of that office in an acting capacity, applies to anyone performing acting service under the FVRA."

Further, the President is constitutionally allowed to make recess appointments when Senate is not in session (which means that such appointments are not subject to Senate approval until the end of the session). However, In National Labor Relations Board v. Noel Canning, the Supreme Court found that "for purposes of the clause, the Senate is in session whenever it indicates that it is, as long as – under its own rules – it retains the capacity to transact Senate business." As such, the Senate can claim to always be in session, therefore preventing the President from making any recess appointments.

Executive Orders

In times of emergency, the President can override Congress and issue executive orders with almost limitless power. Abraham Lincoln used an executive order in order to fight the Civil War, Woodrow Wilson issued numerous ones related to US involvement in World War I, and Franklin Roosevelt approved Japanese internment camps during World War II with an executive order.

Pardons

The U.S. Constitution gives the President almost limitless power to grant pardons to those convicted of federal crimes. While the President cannot pardon someone impeached by Congress, he or she can pardon anyone else without any Congressional involvement.

The Extent of the President's Powers

Article II of the Constitution contains the vesting clause, which states: "The executive Power shall be vested in a President of the United States of America." This has historically been interpreted to mean that the President is the head of the Executive Branch, but that he is still subject to limits within that Branch (i.e. if the President fires members of the Executive Branch, Congress would have oversight and would be able to investigate the firings.) Some scholars, however, have interpreted the Vesting Clause under a much stronger lens, finding that the President has full power over the entire Executive Branch. Under this theory, commonly referred to as the Unitary Executive Theory, any decision that the President makes regarding the Executive Branch would not be subject to any sort of review or oversight (i.e. Congress would not be able to investigate the President's firings of any members of the Executive Branch). While the Supreme Court has not directly embraced or rejected this theory, Justice Alito has made comments which have caused some to think that he endorses the theory: "The president has not just some executive powers, but the executive power — the whole thing."

Keywords
- Article II powers
- President
- constitution
- U.S. CONSTITUTION

Executive Orders and Memoranda

President Abraham Lincoln’s Emancipation Proclamation shifted the focus of the Civil War and set the stage for the passage of the 13th Amendment to the United States Constitution which abolished slavery. The Emancipation Proclamation is not just a memorable speech; it is also the most well-known executive order in history. It provided that all slaves in the rebellious states “shall be then, thenceforward, and forever free” almost two years prior to Congress’s ratification of the 13th amendment.

Executive actions play an extremely important role in the President’s ability to enforce the laws of the United States, but have also become more controversial as Presidents continue to use the device more frequently and in unprecedented ways. This presentation discusses the sources of authority that the President can rely on to issue executive orders, the types of executive orders, and differentiates executive orders from executive memoranda.

Sources of Authority for Executive Actions

The President can draw on three sources to issue an executive action (an executive action is an executive order or memorandum). The first is the Constitution itself. Article II vests the executive power in the President, which gives him the power to oversee and direct the various aspects of the executive branch. The Constitution goes on to charge the President with responsibility to faithfully execute the laws of the United States. This prevents the President from acting in opposition to the law, and an executive order that conflicts with an existing law can be invalidated.

The second source of authority is from the legislative branch. Congress may grant the President or an executive agency the limited power to make rules on certain topics. For example, Congress may vest the Transportation Safety Administration (the TSA) with the power to decide what people can bring onto airplanes. When Congress does this, it is presumed that the President is authorized to issue executive orders to carry out Congress’ goals in passing federal legislation.

The third source for executive actions is the President’s inherent authority, which is defined in Black’s Law Dictionary as “a power that necessarily derives from an office, position, or status.” A President’s inherent authority can fluctuate in scope and acts incidental to both Congress’s and the President’s explicit powers. In the early 1890s, President Grover Cleveland issued an executive order to send US soldiers to end a railroad labor strike that disrupted rail traffic in the Midwest. President Cleveland claimed inherent authority as his justification. When his actions were challenged in court, the Supreme Court agreed with President Cleveland, finding what he did constitutional because he did so under his inherent authority and “incidental powers” to assist Congress in regulating interstate commerce. The Court reasoned that the railroad strike disrupted commercial activity, which limited Congress’s ability to achieve one of its objectives: regulating interstate commerce. President Cleveland was thus helping Congress by ending interference with Congress’ ability to regulate interstate commerce.

Executive Actions and What They Do

The two most common executive actions are an executive order and the executive memorandum.

An executive order is a written statement that the President issues to “direct or instruct the actions of executive agencies or government officials, or to set policies for the executive branch to follow.” It is signed by the President, approved by the Office of Management and Budget and the Attorney General and is recorded in the federal register. An executive order has the full force and effect of a law enacted by the legislature, except where it is contradicted by other duly passed federal law.[5] Therefore, a President can issue an executive order to bypass Congress’ bureaucracy and advance policy objectives without having to go through the legislative process.

An executive memorandum is like an executive order, but it does not have the same procedural requirements. Unlike an executive order that must be signed and published, there is no formal process for issuing an executive memorandum. Furthermore, it does not have to be approved by the Office of Management and Budget and the Attorney General, nor must it be recorded in the federal register.

One example of a forum particularly susceptible to the executive order is military operations. The President, as Commander-in-Chief of the military, is tasked with running the military and may use executive action to set military policy. For example, in 1948, President Harry Truman issued an executive order that desegregated the military. He relied on his authority as Commander-in-Chief to act. President Ronald Reagan relied on the National Security Act of 1947 to issue an executive order which authorized surveillance of certain people and this law also formed the basis for the NSA’s justification to collect data in the early 2000s during the “War on Terror.”[7]

Executive orders can also be used to outline strategy, such as when President Barack Obama issued an executive order, pursuant to his authority under the Clean Water Act, detailing the federal government’s strategy to restore the Chesapeake Bay. Even more recently, President Donald Trump issued an executive memorandum, which directs his Administration to develop a plan to defeat ISIS.

How an Executive Order or Memorandum Can Be Terminated

An executive order or memorandum can be terminated in several ways. The sitting President can rescind an order issued by himself or a previous President or can override the old order by issuing a new order contradicting it. This frequently occurs when a new president takes office and wants to establish new policy goals. For example, when President Obama took office, he issued an executive order that counteracted an executive order signed by President George W. Bush which limited funding for stem cell research. Similarly, when President Trump took office he issued an executive memorandum contradicting President Obama’s previous memorandum concerning the Deferred Action for Childhood Arrivals (or “DACA”) initiative.

Congress can override an executive order or memorandum expressly or by eliminating the funding necessary to carry it out. Recall that while an executive order has the force of federal law, it is subordinate to federal law that contradicts it. Overriding an executive action is rare, however, because legislation to overrule an executive action by a sitting president will almost certainly be vetoed by that president, and, in today’s hyper-partisan environment, gathering a two-thirds majority necessary to override a presidential veto is difficult.

Finally, a court can overturn an executive order if the President acted outside of his authority when he issued it. This can be a difficult determination because, when the President issues an order, he usually gives multiple sources for his authority, such as the Constitution, his power as Commander-in-Chief, and a specific statute, to which courts tend to defer. When courts do overturn executive action, it’s usually on the basis that the order violates the civil rights of individuals or groups.

The most famous example of a court overturning an executive action was in in 1952, in Youngstown Sheet & Tube Co. v. Sawyer. There, during the Korean War, President Truman ordered steel mills seized to break up a strike of steel mill workers. The Court held that Truman did not have the authority to issue an executive order seizing steel mills because no specific statute authorized him to do so. His power as Commander-in-Chief did not authorize him to unilaterally take private property. Moreover, Congress had specifically rejected the idea of granting the President the power to seize factories for military production.

In recent years, Congress’s gridlock and increased polarization have pushed presidents to turn to executive actions more and more as substitutes for legislation. This trend will likely continue as our nation’s Commander-in-Chief looks for alternative paths to set and enforce policy.