Executive Orders, Explained

What are executive orders and how do they work?
Donald Trump signs an executive order (AP)

Donald Trump signs an executive order (AP)

What Is An Executive Order?

An executive order is a directive from the president to the agencies and departments under the Executive Branch specifying how the agencies must carry out their business. While only Congress writes laws, executive orders can shape the way those laws are implemented and enforced, along with the policies of those agencies. Executive orders determine priorities for governmental agencies, and can direct their scope of work. Some of the Executive Branch agencies include the Department of Justice (DOJ), Homeland Security, Immigration and Customs Enforcement (ICE), Department of Agriculture (USDA) and Health and Human Services (HHS) among others.

How Do Executive Orders Work?

As the head of the law-enforcing branch of government, the president has the power to decide how the agencies below the presidency operate. Executive orders tell them exactly that, distinguishing priorities from non-priorities and establishing policy. The orders are numbered consecutively, and can be altered or revoked at any time by the issuing president or any subsequent president.

The president does not have absolute power in writing executive orders, and the orders can be challenged in the courts. The orders cannot alter, create or invalidate laws themselves.

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What’s The Difference Between An Executive Order And A Law?

Laws bind us as citizens; executive orders bind only the agencies at which they are directed. For example, an executive order cannot make it a crime to possess marijuana, but it can direct the DEA in terms of how it handles cases involving marijuana.

Even so, executive orders can bring monumental policy changes so profound they affect citizens as much as a change in the law, and can precede a change in the law. The Emancipation Proclamation was an executive order. The Works Progress Administration (WPA) under Roosevelt, desegregation of the armed forces under Truman, the formation of Native American reservations under President Ulysses S. Grant all used executive orders.

President Obama directed the Department of Justice to stop defending the Defense of Marriage Act (DOMA); that act was eventually ruled unconstitutional by the Supreme Court, making same-sex marriage the law of the land. While Congress writes the immigration laws, Trump used executive orders to limit travel into the US from specific Muslim countries and the Supreme Court allowed it in 2018 with a 5-4 decision. Similarly, again by 5-4, the Supreme Court upheld Trump’s limit on immigrants who might use public benefits in the future.

Another difference lies in how we undo laws and executive orders. Just like the law itself, a repeal of a law must pass through the House and the Senate, and must be signed by the president or receive a 2/3rds majority over a veto. In stark contrast, the president or any successor can immediately revoke or amend an executive order at any time, though that blanket concept may soon be limited by the Supreme Court. In 2017, Trump abruptly ended Deferred Action for Childhood Arrivals, or DACA, a policy created under Obama to prevent the deportation of undocumented immigrants brought to the U.S. as children. A coalition of groups and individuals appeared before the Supreme Court in 2019 to challenge Trump’s closure of the program, and the Court is expected to rule on the issue in the spring or early summer of 2020.

Are There Congressional Remedies To Executive Orders?

Congress writes the laws, and could do so to circumvent a problematic executive order, though that’s a steep hill to climb. The law would have to pass both houses of Congress, and, assuming a veto from the president who issued the executive order, then get a 2/3rds majority vote to override the veto. Congress also controls funding, so blocking funding, as it did with President Donald Trump’s border wall, is another way to remedy an executive order.

The third branch of government, the Judiciary, decides what the law is and executive orders are subject to judicial oversight. The Supreme Court overturned five executive orders from President Franklin D. Roosevelt, including one that led to the internment of Japanese Americans during World War II. President Harry Truman’s attempt to seize private steel mills through executive order in 1952 was also thwarted by the Supreme Court.

After the passage of the Affordable Care Act (ACA), then-Speaker of the House John Boehner and the House Republicans sued the Obama administration over the law’s implementation; the suit eventually settled under Trump. But the judiciary isn’t always the answer. When Trump diverted military funding to his border wall project, the House attempted to sue the administration. That lawsuit was dismissed by agreement after the judge, a Trump appointee, ruled that the House did not have standing, or the right to bring the suit. Other, similar lawsuits about the funds with different plaintiffs yielded mixed results from various federal appeals courts, but ultimately the Supreme Court allowed the diversion in a 5-4 order stating that those plaintiffs also lacked standing to bring the suit.

How Many Executive Orders Has The Trump Administration Issued?

The Trump Administration issued 140 executive orders from January 20, 2017, until February 8, 2020.

How Many Executive Orders Have Been Issued In Recent History?

Since President Bill Clinton took office in 1993, until February 8, 2020, presidents have issued 961 executive orders. Bill Clinton didn’t issue his first executive order until late 1993. Presidents Clinton, George W. Bush and Obama all served two terms; Trump has not yet completed his single term.

The number of executive orders (EOs) by president:

President Party Term(s) EOs
Donald Trump Republican 2017–2020 140
Barack Obama Democratic 2009–2013, 2009–2017 147, 129 | 276
George W. Bush Republican 2001-2005, 2005–2008 173, 119 | 291
Bill Clinton Democratic 1993-1997, 1997-2001 91, 163 | 254

The Rantt Rundown

The president, head of the Executive Branch, issues executive orders to agencies, directing their operations. Unlike laws, which bind citizens, executive orders only bind the agencies to which they are directed. Even so, executive orders can have a major impact on U.S. policy. Congress can override executive orders with legislation; they have also been challenged in the courts with mixed success. Any president can revoke or amend his own or a previous president’s executive order at any time, which is far easier than repealing a law. Since his inauguration, Trump issued 140 executive orders.

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