Executive orders are regulations issued by the President. Provided that they are based either on his constitutional powers or laws passed by Congress, they have the force of law. Federal courts will enforce them just as if they had been enacted by Congress, provided that they do not conflict with federal laws. An executive order that carries out a law may later be revoked by new legislation. An executive order can be nullified, or canceled, if the Supreme Court or lower federal courts find that it is unconstitutional. For instance, in 1952 the Supreme Court ruled that President Harry Truman's seizure of the steel mills during the Korean War violated the due process clause of the Constitution because the President had seized property without being given statutory authority by Congress.
Executive orders are filed in the Department of State after the President issues them. Between 1789 and 1907 Presidents issued approximately 2,400 such orders. Since 1907 the orders have been filed chronologically, and each is given a number, with more than 13,000 numbered between 1908 and 1991.
The first executive order, issued by George Washington on June 8, 1789, instructed the heads of departments to make a “clear account” of matters in their departments. Since then, the orders have been used to regulate the civil service, to determine holidays for federal workers, to recognize federal employee unions, to institute security programs, and to classify government documents as top secret or secret. They have been used to designate public lands as Indian reservations and for environmental protection. They are also used to organize federal disaster assistance efforts. Executive orders have been used by each President beginning with Dwight Eisenhower to organize the intelligence agencies at the beginning of his term in office and to set up other aspects of White House operations.
President Franklin D. Roosevelt used executive orders to create agencies without going through Congress. In 1944 Congress prohibited funding such agencies. In 1968 Congress prohibited the creation of Presidential commissions, councils, or study groups that were not authorized by Congress. President Richard Nixon tried to dismantle several agencies by executive order. This action was blocked by the federal courts because Congress had not abolished them by law.
Executive orders have been used to assert Presidential war powers in the Civil War and all subsequent wars. Franklin Roosevelt seized defense plants to ensure production of aircraft in World War II. He also used a series of executive orders to establish a curfew for Japanese Americans on the West Coast, to exclude them from certain areas, and finally, to intern them in camps in the desert until 1944.
Executive orders have often been used for civil rights enforcement. Harry Truman issued an executive order in 1948 ending racial segregation in the armed forces. John Kennedy issued an executive order banning racial discrimination in newly constructed public housing and another banning pay discrimination against women by federal contractors. He issued orders prohibiting racial discrimination in federally funded libraries, hospitals, and other public facilities. Richard Nixon required government contractors to institute affirmative action hiring programs for women and members of minority groups.
- Louis Fisher, President and Congress (New York: Free Press, 1972)
Originally, executive orders based their legitimacy on Article II, Section 3 of the U.S. Constitution, which contains the phrase "he [the President of the United States] shall take Care that the Laws be faithfully executed." This phrase was interpreted as a management tool, a way for the president to enforce Congress's wishes. Almost immediately, presidents tried to widen the scope of the short phrase. For instance, George Washington proclaimed a "neutrality order" that declared that Americans must not be involved in disputes between foreign countries; this was not the execution of a law but the creation of a law.
Even though they chafed under the constitutional restriction in Article II, presidents found ways to abide by its spirit until the presidency of Andrew Jackson (1829–1837). Perhaps the most controversial of Jackson's actions was to order the forcible removal of the Cherokees from their homes in Georgia and North Carolina to the Oklahoma Territory.
At the outbreak of the U.S. Civil War in 1861, Congress granted President Abraham Lincoln wide latitude in running the government. Although Lincoln overstepped constitutional boundaries, by and large Lincoln's executive orders were upheld in federal courts because of the national crisis. It was Lincoln who began numbering executive orders, with number 1 being signed on 20 October 1862.
In the 1880s another form of executive order was created, in addition to the constitutional one: in civil service legislation, Congress said that it was up to the president to fill in the details of implementing the legislation. Thus, an executive order could depend on the president's interpretation of the legislation, and it would have the force of law. President Franklin D. Roosevelt was also allowed great latitude with executive orders during the Great Depression and World War II. By FDR's time a president could seize property and control communication. FDR used these powers to order the internment of Japanese subjects and Japanese Americans who lived in the Pacific states.
By President Richard Nixon's era (1969–1974), Congress had left enough holes in legislation for presidents to make executive orders in peacetime that had farreaching effects on America. Nixon used executive orders to implement affirmative action, including declaring ethnic quotas on hiring and in the awarding of government contracts.
President Bill Clinton used executive orders to circumvent a hostile Congress on issues such as environmental laws. His most controversial order, with incalculable consequences, was probably Executive Order 13083 on 14 May 1998 "establishing the principles and foundations of federalism," which grants the federal government powers forbidden by the Tenth Amendment of the Constitution. Executive orders become laws when published in the Federal Register, as this one was on 18 May 1998.
Clinton, Bill. "Executive Order 13083—Federalism." Weekly Compilation of Presidential Documents 34, no. 20 (1998): 866–869.
Mayer, Kenneth R. With the Stroke of a Pen: Executive Orders and Presidential Power. Princeton, NJ: Princeton University Press, 2001.
McDonald, Forrest. The American Presidency: An Intellectual History. Lawrence: University Press of Kansas, 1995.
Murray, Frank J. "Critics Claim Exec Orders Permit Government by Fiat." Insight on the News 15, no. 36 (1999): 31.
Shafroth, Frank. "Cities & States Gain Respect in Senate." Nation's Cities Weekly 21, no. 30 (1998): 1–2.
—Kirk H. Beetz