Executive Orders

Legally binding decrees issued by the head of the executive branch of government. Executive orders can [Page 249]be issued by a state governor, but those that affect national security are issued by the president of the United States. Presidents of the United States have issued executive orders since 1789, even though the U.S. Constitution does not expressly grant this power to the president. The nation's chief executives have derived this authority from the grant of “executive power” given in Article II, Section 1, of the Constitution and the statement “take Care that the Laws be faithfully executed” in Article II, Section 3.

Executive orders have legal force unless in conflict with a law passed by Congress or a court decision. The president may retract an executive order at any time or may issue an executive order that supersedes an existing one. Incoming presidents may choose to follow the executive orders of their predecessors, replace them with new ones of their own, or revoke them completely.

Most executive orders are directed to the federal administrative agencies or to the departments of the executive branch to help those agencies fulfill their responsibilities. Other executive orders, called proclamations, serve a ceremonial purpose—such as declaring new holidays. For example, in 1916, Woodrow Wilson proclaimed June 14 as Flag Day. Other executive orders, known as national security directives or presidential decision directives, deal with national security and defense.

Executive orders received little public attention until the early 1900s, being seen only by the agencies to which they were directed. However, in the early 1900s, the Department of State began documenting executive orders. Starting with Abraham Lincoln's Emancipation Proclamation of 1862, the department retroactively began numbering executive orders. Today, only executive orders dealing with national security are kept from the public.

Because of the Constitution's lack of specificity concerning the president's use of executive orders, for years no rules or guidelines outlined the scope of presidential authority under an executive order. However, in 1952, the Supreme Court invalidated an executive order from President Harry S. Truman, which placed all steel mills in the country under federal control. The court ruled that the order was unconstitutional because it attempted to make law rather than clarify a law passed by Congress. Since that decision, presidents have been careful to cite the specific laws they are addressing when issuing executive orders.

To date, the courts have overturned only one other executive order. In 1996, the Court of Appeals of the District of Columbia overturned an executive order issued by President Bill Clinton barring the federal government from contracting with companies that hire permanent strikebreakers. Congress may also overturn an executive order by passing legislation or by not approving funding to enforce it. Because the president retains the power to veto such a decision, Congress has not exercised that authority. The unwillingness of the judicial and legislative branches to intervene has freed presidents to issue orders on a vast range of subjects.

Policy changes with wide-ranging effects have been passed into law through executive order. Notable examples include the integration of the armed forces in 1948 under Harry S. Truman and the desegregation of the Little Rock, Arkansas, public schools in 1957 under Dwight D. Eisenhower. In 1970, Richard Nixon established the National Oceanic Atmospheric Administration (NOAA) with a 398-word executive order.

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