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Law and Politics

Presidential Power: Executive Order

Explained

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WHAT IT IS

  • An executive order is a directive by the U.S. President that has the effect of law. [HISTORY]

  • According to the Congressional Research Service, there is no direct “definition of executive orders, presidential memoranda, and proclamations in the U.S. Constitution, there is, likewise, no specific provision authorizing their issuance.” [National Constitution Center]

  • The implied power comes from Article II, Section 1 of the U.S. Constitution, which vests executive power in the President and outlines the ability of “executive actions.” [The Washington Post], [National Constitution Center]

  • Executive orders can indicate to federal agencies the ways in which they should understand and enforce national laws. [PBS News Hour]

  • This allows the president to enact policy changes with the similar force of a law without going through Congress[HISTORY]

  • Congress is not required to approve executive orders but can pass legislation to override the order. [National Constitution Center]

  • U.S. presidents have signed more than 13,000 executive orders since 1789. [BBC]

  • William Henry Harrison is the only U.S. president to never have issued an executive order. [American Presidency Project]

  • In his first 200 days in office, President Trump signed 42 executive orders. [Business Insider

  • One of President Trump's most controversial executive order was a ban on citizens from specific countries, publicly-coined the "travel ban" or "Muslim Ban." [Vox]

WHY IT MATTERS

 

CIVICS: Over history, the executive branch has expanded in power through precedent, with executive orders being an example. Some question if this power is becoming an abuse by skirting Congress and the process of legislation.

 

SOCIAL: The extent to which the power is used and for what purpose is up to the sitting president. For example, former President Barack Obama signed about three executive orders each month. President Donald Trump is averaging more than four a month and set a record of issuing 14 in his first week in office. [HISTORY] Do these "records" matter?

USE IT   

Supports legislation

Many presidents use the power to clarify enforcement of a law or help extend critical services granted under the legislation. [The White House]

 

 

Inaction

Some presidents use the power when Congress is unwilling or to slow to create change. [National Constitution Center]

 

For example, former President Abraham Lincoln issued an executive order to emancipate thousands of enslaved Americans. [Historical Society of Pennsylvania] This is known as The Emancipation Proclamation of 1863.

 

 

Checks and balances

Any executive order must identify whether the order is based on the powers given to the president by the U.S. Constitution or delegated to the president by Congress[HISTORY]

 

The judicial branch of the government can block executive orders if determined to be unconstitutional. [The Washington Post]

 

The legislative branch of the government, or Congress, has the power to pass a law that could reverse or override any order. [National Constitution Center

LOSE IT   

"Implied" power

Since there is no direct language in the Constitution that defines the power, some refer to executive order as an implied power and therefore not directly protected by the Constitution. [HISTORY

 

 

Abuse

Some feel this presidential power can be abused and used to skirt the Constitutional processes for creating law and order.

 

 

Alienation

Some feel the use of executive order alienates or isolates the president from Congress, further diving the two branches and causing more issues to work together to pass legislation. [Dallas Morning News]

 

 

Trust the process

Some feel that governmental branches that interpret and enforce executive orders are often caught off guard and ill-prepared to execute due to the expedited nature of the process.

 

Policymaking channels, as slow as they may seem, exist to make sure that policies can be carried out properly. [US News]

WHERE WE ARE NOW

  • June 2018: President Trump signed an executive order to keep families together when detained at the U.S.-Mexico border. President Trump had previously enacted policy to separate families and children trying to illegally enter the country. [TIME]

  • July 2019: President Trump signed an executive order improving the kidney transplant and disease care system. [TIME]

  • Oct. 2019: President Trump signed an executive order to "improve the transparency and fairness of government agencies and ensure that they are held accountable." [The White House]

  • May 2020: President Trump signed an executive order to regulate social media. Experts say it contains nothing new. [NPR]

  • Jun. 2020: President Trump signed an executive order aimed at encouraging police reform. [TIME]

THINGS TO THINK ABOUT

  • All executive orders can be publicly accessed through the Federal Register.

  • Here’s a look at how President Obama’s executive order usage compared to that of other presidents. [Pew Research Center]

  • "Can a President Amend Regulations by Executive Order?" Read more here.

  • Can an executive order be used to alter the Constitution? [Vox]

  • Under what circumstances would a president use an executive order rather than draft a new law?

 

 

 

 

This article is aligned with Purple for Democracy, a movement to support democracy through non-partisan, non-political content. 

 

Learn more about the Purple movement here

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