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Executive Order

How We Cite An Executive Order

We cite an executive order with the abbreviation E.O. followed by its number and date.

For example, E.O. 13713 of December 11, 2015 is the citation for the executive order which announced that executive departments and agencies would work for only half the day on Christmas Eve 2015.

Published: December 7, 2017

What Executive Orders Can’t Do

 

Executive orders do not create new laws or change existing ones.

 

Under Article 1 of the U.S. Constitution, only Congress has the authority to create new laws:

 

“All legislative powers herein granted shall be vested in a Congress of the United States....”

 

- Art I, § 1 of the U.S. Constitution

 

Likewise, executive orders do not appropriate new money from the U.S. Treasury; only Congress may do so.

 

Specifically, proposed legislation which seeks to raise revenue must originate in the House of Representatives.

 

“All bills for raising revenue shall originate in the House of Representatives....”

 

- Art I, § 7, cl. 1 of the U.S. Constitution

What Executive Orders Can Do

 

What Executive orders can do is detail how the federal agencies the president oversees are to use their resources.

 

Executive orders instruct the executive branch to take a specific action.

 

And they do not require congressional approval.

 

This is because the ability to issue executive orders is an implied authority derived from Article II of the U.S. Constitution which vests in the President the power to carry out executive actions.

 

“The executive power shall be vested in a President of the United States of America.”

 

- Art II, § 1, cl. 1 of the U.S. Constitution

 

Executive orders are one type of executive action.

What Have Executive Orders Been Used For?

 

Executive orders have covered a broad range of issues ranging from simple, uncontentious matters to complex and contested ones.

 

For example, on December 11, 2015 Pres. Obama issued an uncontentious executive order which ordered that executive branch departments and agencies would take a half day on Christmas Eve.

 

On the other end of the spectrum, in 1942 President Roosevelt signed Executive Order 9066 which resulted in the internment of Japanese Americans on the west coast of the United States.  

Why Do Presidents Use Them?

 

Executive orders do not require congressional assent.

 

They may therefore be used by a president whose agenda is stalled in Congress.

 

They may also be used out of necessity to avert crises or during wartime.

 

A less controversial use may be to clarify the details of a newly passed law.

Why Are They So Controversial?

 

Precisely for the same reason presidents use them: because they do no require congressional assent.

 

They are sometimes pejoratively referred to as “rule by executive fiat.”

 

And presidents have at times been accused of overstepping their authority and using their executive orders to change the law rather than merely work within it.

Can They Be Challenged?

 

Yes, they can.

 

Executive orders are sometimes challenged in the judiciary, where opponents of a particular order may argue that it has overstepped constitutional limits.

 

For example, in 1952 President Truman issued an Executive Order directing the Secretary of Commerce to take possession of and operate the plants and facilities of certain steel companies, in the name of national defense.

 

The steel companies challenged the legality of this executive order and the Supreme Court ultimately declared it unconstitutional on the grounds that it was an attempt by the President to take a legislative act (i.e. to create new law) rather than an executive action.

 

Additionally, a new President may undo executive actions taken by previous Presidents.

 

Alternatively, Congress may pass legislation which overrides an executive order if the order deals with an area in which the Executive and the Legislator share power.

 

However, this approach may require the support of a veto-proof supermajority in Congress because a President is unlikely to sign legislation undoing his/her executive actions.