What is an executive order, anyway?January 28, 2021
Executive orders are a central part of any presidential administration’s policy agenda. They’re a tool with great power, yet are often misunderstood. President Barack Obama used executive orders to get around a Congress dedicated to undermining his presidency. President Donald Trump used the presidential tool to further his agenda amid legislative chaos and personnel turnover. And now, President Biden is using them to undo Trump’s agenda — and push one of his own. With their increasingly frequent use, we found ourselves asking: What the hell is an executive order, anyway?
What are executive orders?
An executive order gets its name from the Executive Branch, i.e. the Office of the President. Essentially, an executive order is what is sounds like: a unilateral order that once signed by the president has the same force of a law.
How do executive orders work?
Executive orders are made possible by solely via the president’s vast powers. They have the same force of a law, and are treated as law in the judicial system. However, executive orders aren’t literally laws because only Congress retains the ability to make laws. The difference is important, because it means that the principles in executive orders are policy as long as the executive who is in office wants them to be.
Sometimes presidents use executive orders to work around a stalled or stubborn Congress, as Obama did for most of his two terms. In other instances, presidents will use executive orders to make fast progress on an issue that Congress agrees on, but that would take much longer to enact through the legislative branch; one example is when President Franklin Delano Roosevelt enacted much of his Depression-era legislation through executive orders. Once an executive order is signed by the president, federal agencies and departments are obligated to get to work fulfilling the directives it contains.
Because executive orders don’t require Congress’s approval, consent, or cooperation, presidents may use executive orders to enact policy that they don’t want to compromise on. Still, there are political repercussions for using the power of the Oval Office to enact a legislative agenda: Members of Congress might be angered by the unilateral move and intentional sidestepping of legislators and thus be less inclined to support the president’s agenda moving forward. This is why presidents are careful about what policy change they pursue through executive order versus what items they work with Congress on — most presidents don’t want to seem like they’re steamrolling the American people’s representatives.
Curiously, there isn’t a clear constitutional basis for executive orders. Rather, the power of executive orders is rooted in the assumed and implied authority of the president as outlined by the Constitution. “Nonetheless, such orders are accepted as an inherent aspect of presidential power,” the Congressional Research Service (CRS) writes. “Just as there is no definition of executive orders, presidential memoranda, and proclamations in the U.S. Constitution, there is, likewise, no specific provision authorizing their issuance.”
What have executive orders done?
Through executive order, Trump called for the construction of a border wall at America’s southern border shared with Mexico. He also relied on an executive order to hack away at the Affordable Care Act, pending a legal battle. Infamously, an executive order signed by FDR incarcerated Japanese Americans on the West Coast during World War II. An executive order also facilitated the integration of Little Rock Central High School by calling for National Guard protection of Black students.
In the first week of his presidency, Biden has signed nearly 40 executive orders, restoring the processes of federal agencies, adding protections to federal laws weakened by Trump, promoting initiatives to address climate change, and bolstering campaign promises to enact racial justice minded policy.
What’s the history of executive orders?
Executive orders have been used by nearly every U.S. president, though the number of executive orders signed changes from administration to administration. There’s no clear relationship between a president’s political party and the number of executive orders he issued. For instance, in his single term, President George H.W. Bush issued 166 executive orders; over the course of eight years, his successor President Bill Clinton issued more than twice that number.
President Trump might be an outlier in recent memory in his liberal use of executive orders. In his single presidential term — for two years of which his own party controlled both the House and the Senate — he issued 220 executive orders. For comparison, Obama issued 276 executive orders over eight years, with a much more obstinate Congress for much of that time.
Even though executive orders are consistently used, scholars have questioned their use, doubting whether the executive branch should have access to that much power to begin with. After all, the U.S. was founded based on the argument that unilateral monarchal rule was undemocratic.
There are some backstops against this kind of presidential power, though. Congress does have the ability to overturn an executive order, though it’s rare: According to the CRS, Congress has overturned or revoked less than 4% of executive orders. The CRS reports that revoking an order is as simple as passing amending legislation saying that the executive order “shall not have legal effect.” Another workaround in the congressional tool belt is to prevent public funds from fulfilling an executive order. This method has worked in instances when executive orders created another federal office or agency, and Congress responded by denying funds to pay for salaries of those assigned to work in that agency.
Presidents can also overturn executive orders that run counter to their legislative goals. And that, in the end, is probably why they’re not used to achieve every goal. Per the CRS, “President George W. Bush issued several executive orders that revoked several of President Clinton’s executive orders regarding union dues and labor contracts, significantly altering several requirements pertaining to government contracts.”
Going through Congress to make laws might not seem like much fun if you can just sign a piece of people yourself to get it done. But if the alternative is that the next president can just come in and undo all your achievements, you might be tempted to make a call or two to Capitol Hill instead.