Executive Orders

Executive orders are regulations issued by the President. Provided that they are based either on his constitutional powers or laws passed by Congress, they have the force of law. Federal courts will enforce them just as if they had been enacted by Congress, provided that they do not conflict with federal laws. An executive order that carries out a law may later be revoked by new legislation. An executive order can be nullified, or canceled, if the Supreme Court or lower federal courts find that it is unconstitutional. For instance, in 1952 the Supreme Court ruled that President Harry Truman's seizure of the steel mills during the Korean War violated the due process clause of the Constitution because the President had seized property without being given statutory authority by Congress.

Executive orders are filed in the Department of State after the President issues them. Between 1789 and 1907 Presidents issued approximately 2,400 such orders. Since 1907 the orders have been filed chronologically, and each is given a number, with more than 13,000 numbered between 1908 and 1991.

The first executive order, issued by George Washington on June 8, 1789, instructed the heads of departments to make a “clear account” of matters in their departments. Since then, the orders have been used to regulate the civil service, to determine holidays for federal workers, to recognize federal employee unions, to institute security programs, and to classify government documents as top secret or secret. They have been used to designate public lands as Indian reservations and for environmental protection. They are also used to organize federal disaster assistance efforts. Executive orders have been used by each President beginning with Dwight Eisenhower to organize the intelligence agencies at the beginning of his term in office and to set up other aspects of White House operations.

President Franklin D. Roosevelt used executive orders to create agencies without going through Congress. In 1944 Congress prohibited funding such agencies. In 1968 Congress prohibited the creation of Presidential commissions, councils, or study groups that were not authorized by Congress. President Richard Nixon tried to dismantle several agencies by executive order. This action was blocked by the federal courts because Congress had not abolished them by law.

Executive orders have been used to assert Presidential war powers in the Civil War and all subsequent wars. Franklin Roosevelt seized defense plants to ensure production of aircraft in World War II. He also used a series of executive orders to establish a curfew for Japanese Americans on the West Coast, to exclude them from certain areas, and finally, to intern them in camps in the desert until 1944.

Executive orders have often been used for civil rights enforcement. Harry Truman issued an executive order in 1948 ending racial segregation in the armed forces. John Kennedy issued an executive order banning racial discrimination in newly constructed public housing and another banning pay discrimination against women by federal contractors. He issued orders prohibiting racial discrimination in federally funded libraries, hospitals, and other public facilities. Richard Nixon required government contractors to institute affirmative action hiring programs for women and members of minority groups.

See also Executive branch; Executive power; Imperial Presidency; Steel seizure (1952)

Sources

• Louis Fisher, President and Congress (New York: Free Press, 1972)

Originally, executive orders based their legitimacy on Article II, Section 3 of the U.S. Constitution, which contains the phrase "he [the President of the United States] shall take Care that the Laws be faithfully executed." This phrase was interpreted as a management tool, a way for the president to enforce Congress's wishes. Almost immediately, presidents tried to widen the scope of the short phrase. For instance, George Washington proclaimed a "neutrality order" that declared that Americans must not be involved in disputes between foreign countries; this was not the execution of a law but the creation of a law.

Even though they chafed under the constitutional restriction in Article II, presidents found ways to abide by its spirit until the presidency of Andrew Jackson (1829–1837). Perhaps the most controversial of Jackson's actions was to order the forcible removal of the Cherokees from their homes in Georgia and North Carolina to the Oklahoma Territory.

At the outbreak of the U.S. Civil War in 1861, Congress granted President Abraham Lincoln wide latitude in running the government. Although Lincoln overstepped constitutional boundaries, by and large Lincoln's executive orders were upheld in federal courts because of the national crisis. It was Lincoln who began numbering executive orders, with number 1 being signed on 20 October 1862.

In the 1880s another form of executive order was created, in addition to the constitutional one: in civil service legislation, Congress said that it was up to the president to fill in the details of implementing the legislation. Thus, an executive order could depend on the president's interpretation of the legislation, and it would have the force of law. President Franklin D. Roosevelt was also allowed great latitude with executive orders during the Great Depression and World War II. By FDR's time a president could seize property and control communication. FDR used these powers to order the internment of Japanese subjects and Japanese Americans who lived in the Pacific states.

By President Richard Nixon's era (1969–1974), Congress had left enough holes in legislation for presidents to make executive orders in peacetime that had farreaching effects on America. Nixon used executive orders to implement affirmative action, including declaring ethnic quotas on hiring and in the awarding of government contracts.

President Bill Clinton used executive orders to circumvent a hostile Congress on issues such as environmental laws. His most controversial order, with incalculable consequences, was probably Executive Order 13083 on 14 May 1998 "establishing the principles and foundations of federalism," which grants the federal government powers forbidden by the Tenth Amendment of the Constitution. Executive orders become laws when published in the Federal Register, as this one was on 18 May 1998.

Bibliography

Clinton, Bill. "Executive Order 13083—Federalism." Weekly Compilation of Presidential Documents 34, no. 20 (1998): 866–869.

Mayer, Kenneth R. With the Stroke of a Pen: Executive Orders and Presidential Power. Princeton, NJ: Princeton University Press, 2001.

McDonald, Forrest. The American Presidency: An Intellectual History. Lawrence: University Press of Kansas, 1995.

Murray, Frank J. "Critics Claim Exec Orders Permit Government by Fiat." Insight on the News 15, no. 36 (1999): 31.

Shafroth, Frank. "Cities & States Gain Respect in Senate." Nation's Cities Weekly 21, no. 30 (1998): 1–2.

—Kirk H. Beetz

Presidential policy directives that implement or interpret a federal statute, a constitutional provision, or a treaty.

The president's power to issue executive orders comes from Congress and the U.S. Constitution. Executive orders differ from presidential proclamations, which are used largely for ceremonial and honorary purposes such as declaring National Newspaper Carrier Appreciation Day.

Executive orders do not require congressional approval. Thus, the president can use them to set policy while avoiding public debate and opposition. Presidents have used executive orders to direct a range of activities, including establishing migratory bird refuges; putting Japanese Americans in internment camps during World War II; discharging civilian government employees who had been disloyal, following World War II; enlarging national forests; prohibiting racial discrimination in housing; pardoning Vietnam War draft evaders; giving federal workers the right to bargain collectively; keeping the federal workplace drug free; and sending U.S. troops to Bosnia.

Historically, executive orders related to routine administrative matters and to the internal operations of federal agencies, such as amending Civil Service Rules and overseeing the administration of public lands. More recently, presidents have used executive orders to carry out legislative policies and programs. As a result, executive orders have become a critical tool in presidential policy making. For example, President John F. Kennedy used an executive order to eliminate racial discrimination in federally funded housing (Exec. Order No. 11,063, 3 C.F.R. 652 [1959-1963], reprinted in 42 U.S.C.A. § 1982 app. at 6-8 [1982]); President Lyndon B. Johnson acted through an executive order to prohibit discrimination in government contractors' hiring practices (Exec. Order No. 11,246, 3 C.F.R. 339 [1964-1965], reprinted in 42 U.S.C.A. § 2000e app. at 28-31 [1982], amended by Exec. Order No. 11,375, 3 C.F.R. 684 [1966-1970], superseded by Exec. Order No. 11,478, 3 C.F.R. 803 [1966-1970], reprinted in 42 U.S.C.A. § 2000e app. at 31-33 [1982]); and President Richard M. Nixon used an executive order to set a ninety-day freeze on all prices, rents, wages, and salaries in reaction to rising inflation and unemployment (Exec. Order No. 11,615, 3 C.F.R. 602 [1971-1975], amended by Exec. Order No. 11,617, 3 C.F.R. 609 [1971-1975], superseded by Exec. Order No. 11,627, 3 C.F.R. 621 [1971-1975]).

Most executive orders are issued under specific statutory authority from Congress and have the force and effect of law. Such executive orders usually impose sanctions, determine legal rights, limit agency discretion, and require immediate compliance. Federal courts consider such orders to be the equivalent of federal statutes. In addition, regulations enacted to carry out these executive orders have the status of law as long as they reasonably relate to the statutory authority. An administrative action carried out under a valid executive order is similar to an agency action carried out under a federal statute. In each case, the agency's authority to enact rules and issue orders comes from Congress.

Absent specific statutory authority, an executive order may have the force and effect of law if Congress has acquiesced in a long-standing executive practice that is well-known to it. For example, in Dames v. Regan, 453 U.S. 654, 101 S. Ct. 2972, 69 L. Ed. 2d 918 (1981), the U.S. Supreme Court upheld various executive orders that suspended claims of U.S. nationals arising out of the Iranian hostage crisis, citing Congress's acquiescence in a 180-year-old practice of settling U.S. citizens' claims against foreign governments by executive agreement. In describing the situation before it, the Court stated,

[W]e freely confess that we are obviously deciding only one more episode in the never-ending tension between the President exercising the executive authority in a world that presents each day some new challenge with which he must deal and the Constitution under which we all live and which no one disputes embodies some sort of system of checks and balances.

Executive orders may also be authorized by the president's independent constitutional authority (Cunningham v. Neagle, 135 U.S. 1, 10 S. Ct. 658, 34 L. Ed. 55 [1890]). Various clauses of the U.S. Constitution have been cited to support the issuance of executive orders. Among them are the Vestiture Clause, which states, "The executive Power shall be vested in a President of the United States of America" (art. II, § 1, cl. 1); the Take Care Clause, which states that the president "shall take Care that the Laws be faithfully executed" (art. II, § 3); and the Commander in Chief Clause, which states that the president "shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States" (art. II, § 2, cl. 1).

Executive orders often omit citing a specific constitutional provision as authority. For example, Executive Order No. 11,246 (3 C.F.R. 339 [1964-1965 Comp.]), which prohibits discrimination in federal employment, simply states, "Under and by virtue of the authority vested in me as President of the United States by the Constitution and statutes of the United States, it is ordered as follows …"

Some executive orders issued pursuant to the president's independent constitutional authority have been criticized as implementing what has been called essentially executive managerial policy. Although this type of order is directed to public officials, it may also affect private interests, through the actions of such officials. For example, Executive Order No. 11,246, which prohibits discrimination in federal procurement and employment, affects the interests of federal contractors and their employees; Executive Order No. 10,988 (3 C.F.R. 521 [1959-1963 Comp.]), which extends collective bargaining to the federal workforce, affects federal workers; and Executive Order No. 12,291 (3 C.F.R. 127 [1982]), which imposes controls on administrative rule making, affects individuals who are subject to administrative regulations.

Lawsuits brought to force federal agencies to comply with executive orders are usually dismissed by the courts on the ground that the orders do not provide a cause of action (a right to judicial relief). For example, in Acevedo v. Nassau County, 500 F.2d 1078 (2d Cir. 1974), low-income minority groups claimed that the General Services Administration had violated Executive Order No. 11,512 (35 Fed. Reg. 3,979 [1970]) by planning a federal office building without considering the adequacy of low-income housing in the area. The federal court of appeals refused to decide the claim because the plaintiffs lacked standing (a legally protectible interest). In Manhattan-Bronx Postal Union v. Gronouski, 350 F.2d 451 (D.C. Cir. 1965), cert. denied, 382 U.S. 978, 86 S. Ct. 548, 15 L. Ed. 2d 469 (1966), the court denied a claim against the postmaster general for violating Executive Order No. 10,988 (3 C.F.R. 521 [1959-1963]), because the president did not grant a right of action. In Independent Meat Packers Ass'n v. Butz, 526 F.2d 228 (8th Cir. 1975), cert. denied, National Ass'n of Meat Purveyors v. Butz, 424 U.S. 966, 96 S. Ct. 1461, 47 L. Ed. 2d 733 (1976), the appellate court stated that to infer a cause of action would create "a serious risk that a series of protracted lawsuits brought by persons with little at stake would paralyze the rulemaking functions of federal administrative agencies."

Similarly, the courts generally reject claims against private defendants for violations of executive orders. For example, in Cohen v. Illinois Institute of Technology, 524 F.2d 818 (7th Cir. 1975), cert. denied, 425 U.S. 943, 96 S. Ct. 1683, 48 L. Ed. 2d 187 (1976), the appellate court denied a professor's claim against a university to recover damages for sex discrimination in violation of Executive Order No. 11,246, stating that the executive order could not give rise to an independent private cause of action.

To have the effect of law, executive orders must appear in the Federal Register, the daily publication of federal rules and regulations. Executive orders are also compiled annually and published in the Code of Federal Regulations. Selected orders are published with related statutes in U.S. Code Annotated and U.S. Code Service.

Executive orders have been used to influence issues in hundreds of areas. War-related activities are among the most frequently addressed. For example, in September 1939, President Franklin D. Roosevelt prescribed regulations governing the enforcement of the neutrality of the United States "in the war now existing between Germany and France; Poland; and the United Kingdom, India, Australia, and New Zealand" (Exec. Order No. 8,233, 4 Fed. Reg. 3,822). By February 1942, the United States had joined World War II and Roosevelt had ordered the confinement of Japanese Americans to internment camps following the bombing of Pearl Harbor in January 1941 (Exec. Order No. 9,066, 7 Fed. Reg. 1,407). In March 1947, following the war, President Harry S. Truman established loyalty review boards to discharge civilian government employees who had been disloyal during the war (Exec. Order No. 9835, 3 C.F.R. 627 (1943-1948), revoked by Exec. Order No. 10,450, 3 C.F.R. 936 (1949-1953). In January 1977, following the Vietnam War, President Jimmy Carter directed the U.S. attorney general to cease investigating and indicting Vietnam War draft evaders (Exec. Order No. 11,967, 42 Fed. Reg. 4,393). In December 1995, President Bill Clinton ordered the U.S. reserve armed forces into active duty to augment the active armed forces' operations in and around the former Yugoslavia (Bosnia) (Exec. Order No. 12,982, 60 Fed. Reg. 63,895).

See: Administrative Acts; Administrative Agency; Constitution of the United States; Federal Register; Presidential Powers.