The message came via Facebook: “Anyone have an unbiased lesson out there about executive orders? I feel that I need to focus on them for a day and explain how they work.”
It’s a good question. Although most of us learned how a bill becomes law, that lesson probably didn’t have a lot to say about executive orders. Think about it: We teach students that the legislative branch makes the laws, the judicial branch interprets the laws, and the executive enforces the laws. Executive orders don’t fit neatly into that formula.
The Constitution doesn’t mention executive orders explicitly, but they’re considered an implied power of the presidency. They’ve been around since George Washington’s presidency, during which he issued a total of eight, including the Neutrality Proclamation in April 1793.
Three presidents—John Adams, James Madison and James Monroe—issued no executive orders. Only four of our presidents have issued more than 1,000 each: Franklin Delano Roosevelt (3,522); Woodrow Wilson (1,803); Calvin Coolidge (1,203); and Theodore Roosevelt (1,081). You can go to the Federal Register to read all the executive orders since the start of the Clinton presidency, and Wikipedia maintains an up-to-date list of the number of orders issued since 1789.
To be lawful, an executive order must either relate to how the executive branch operates or exercise an authority delegated to the president by Congress. But that last power is limited: Congress can’t delegate legislative powers to the president that are specifically assigned to Congress in the Constitution.
Figuring all that out can be complicated, so presidents usually take care to ensure that their executive orders pass muster. Typically, the orders get vetted by relevant government agencies and are reviewed by the Department of Justice (DOJ) to ensure that they comply with existing laws. One criticism of this past weekend’s “Refugee and Visa” executive order was that it was not reviewed by any agencies, including the DOJ.
Critics of presidential power worry about executive orders because they bypass the debates and deliberations that go into making a bill a law. Just like acts of Congress, though, executive orders are subject to checks and balances—after the fact. Congress can pass legislation to invalidate the action taken in an executive order. That’s not likely, however, when the president’s party is also the majority in Congress. Executive orders are also subject to judicial review; like laws, they can be challenged in the federal courts and ultimately go all the way to the Supreme Court.
When does a president use an executive order? Clearly, many of President Barack Obama’s 274 orders were prompted by having to work with a hostile Congress; he responded by doing as much as he could without legislative approval. During times of crisis, Congress may give power to the president to act quickly. That was certainly the case during World War I (Wilson) and during the twin crises of the Great Depression and World War II (FDR).
Executive orders have a checkered history; they’ve been the instruments of some of our proudest achievements and some of our most shameful.
President Abraham Lincoln issued 48 executive orders. One, issued at the beginning of the Civil War while Congress wasn’t in session, suspended the basic right of habeas corpus. Lincoln reasoned that he was empowered by the Article I provision that allowed for suspension of the right during times of rebellion. Supreme Court Justice Roger Taney, however, sitting as a trial judge in a Maryland case that came up under the order, issued an opinion that it was exclusively a congressional power. Lincoln ignored the opinion, the Supreme Court never took it up, and eventually Congress did pass a law upholding the executive action.
On the other side of the scale, Lincoln’s 1863 Emancipation Proclamation was also an executive order, one that was made into fundamental law by ratification of the 13th Amendment in 1865.
Similarly, FDR had executive orders good and bad. On his first day in office, amidst massive bank failures, he ordered a bank holiday and closed all banks until federal examiners could warrant that they were sound. Most historians think that order saved the U.S. financial system. But later, in the midst of World War II, FDR signed the infamous Executive Order 9066, ordering the relocation of Japanese Americans, including U.S. citizens, to internment camps.
President Harry Truman’s use of executive orders shows both the courage and the limits of presidential power. In 1948, Truman signed Executive Order 9981, and with a stroke of his pen ended the segregation of the nation’s military, six years before the Supreme Court ended segregation in schools. But later, in 1952, faced with a potentially massive steel workers’ strike, Truman nationalized the steel industry, ordering the secretary of commerce to seize and operate the country’s steel mills. He claimed it was a national emergency and that the mills were needed to produce munitions for the ongoing Korean War. By that time, Truman was an unpopular president, and Congress didn’t back him. Meanwhile, the steel companies brought a lawsuit that went to the Supreme Court. The Court ruled that Truman’s seizure of private property was unconstitutional.
The decision in that case, Youngstown, Sheet & Tube Co. v. Sawyer, also clarified when the president has clear authority to issue an executive order and when the courts might intervene. It’s a useful guide: 1) The president’s authority is clear when acting under the express consent of Congress; 2) the president’s authority is uncertain when it’s an area that Congress hasn’t acted on, either approving or disapproving presidential actions. In this “zone of twilight,” a court might closely analyze the circumstances; 3) when the executive order is incompatible with an act of Congress, the court is likely to overturn the action.
As you discuss current events with your students, we hope this rundown on executive orders will provide some context.
Costello is the director of Teaching Tolerance.