Separation of What? a Brief Overview of Executive Orders in the United States

Executive orders are in the headlines again. As every child in the US is taught in school, the federal government is made up of three branches, the Executive, the Legislative, and the Judiciary. This arrangement was designed as part of an intricate system of checks and balances intended to avoid giving too much power to any part of the government. In recent years there has been much debate over the limits of executive orders, particularly those executive orders relating to immigration, and this debate has been brought to the fore in recent weeks because of executive orders signed by the current president which attempt to provide stimulus relief for the economy. Rather than simply directing the executive, the current orders seek to resolve a legislative impasse by bypassing the legislature entirely, a move which ought to give legal scholars room to debate for decades.

 What are Executive Orders?

While the separation of powers is enshrined in the U.S. Constitution, the power to give an executive order has been implied by the executive branch, beginning with George Washington, and a point of contention among the founding fathers For an interesting look at the rising power of the executive in the first presidency of the U.S., I recommend Ron Chernow’s biography of Alexander Hamilton, the first U.S. Treasury Secretary.^[1]

At its simplest, an executive order is a way of announcing to the government and the public a change in policy for an executive agency, the government equivalent of a binding, all-company memo from the CEO. For the early revolutionaries, who had spent years fighting against a monarchy, executive orders must have had some eerie similarity to royal decrees.

For more information about executive orders historically you can read a publication prepared by the U.S. House of Representatives Committee on Government Operations. It was published in 1957, but it still gives a good baseline for understanding the current controversies, and it can be found on HathiTrust online for free. Don’t be put off by the 220-page count, as most of that is re-printed executive orders; the first forty pages are the more interesting part.

What about Executive Proclamations?

The overview of the government publication listed above notes that presidents may also issue Executive Proclamations, but makes clear that the distinction between Executive Orders and Executive Proclamations is merely one of subject: Orders are given to the agencies which the President directs, while Proclamations are directed at members of the public. As the President has no direct authority here, these proclamations are merely “hortatory.”^[2]

What are some famous Executive Orders?

For a few of the most famous Executive Orders, see Time Magazine’s list or this list from the HeinOnline Blog. The Peace Corps was established by an executive order from John F. Kennedy, and has gone on to make positive changes around the world. As you can see from that order, executive orders often list the authority under which the president derives his power to act, “By virtue of the authority vested in me by the Mutual Security Act of 1954, 68 Stat. 832.” Sadly, an executive order also paved the way for the removal of American citizens and U.S. residents from their homes and into internment camps during the Second World War.

Where can I find an Executive Order?

Like many other government documents, executive orders are published directly by the government. Law students often hope to find them with the statutes, but because these are executive orders, they are published in the Federal Register, where proposed and enacted regulations are published by the executive branch agencies. The Federal Register is online for free, and contains the executive orders after 1936. As the Library of Congress’s Finding Guide notes, if you’re looking for older executive orders, you may want to visit a library. If you’d like to access the executive orders from the last four presidents, the federal register has a page for that, too.

What if I disagree with an Executive Order?

Well, you can take your dispute to court. Executive orders have been overturned, even by the Supreme Court, as in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952). If you want to read more about how to overturn an executive order, read Erica Newland, Executive Orders in Court, 124 Yale L.J. 2026 (2015), and for more information about how the orders are interpreted by agencies and courts, read Matthew Chou, Agency Interpretations of Executive Orders, 71 Admin. L. Rev. 555 (2019).

What if I want to write my own Executive Order?

This one’s very simple and straightforward: become President of the United States. Any natural born citizen is eligible as long as she or he is over the age of 35. Among others, natural born citizens include those people born in the U.S., whether their parents were citizens or not at the time of their birth. Unlike Executive Orders, those rules are in the U.S. constitution.

______________________

^[1] For a very fun look at American history which briefly mentions the first presidency and the powers of the executive, I highly recommend Lin Manuel Miranda’s musical, Hamilton.

^[2] Hortatory; trying to strongly encourage or persuade someone to do something. Cambridge English Dictionary.