Login | April 20, 2024
Executive orders have become much more frequent — and contentious
DANIEL A. COTTER
Law Bulletin columnist
Published: February 17, 2017
Article II, Section 1 of the U.S. Constitution begins, “The executive Power shall be vested in a President of the United States of America.”
However, the Constitution does not define the scope of the “executive actions” that every president beginning with George Washington has exercised.
In recent days, the media has focused on the rapid activity of President Donald Trump in taking various executive actions. This column takes a closer look at the history of executive actions and compares Trump’s to those of his predecessors.
Executive actions taken by presidents in modern times fall into one of four categories: 1) proclamations; 2) executive orders; 3) presidential memorandums; and, 4) national security directives.
Proclamations are the most basic and outline the president’s policy positions on a particular topic. The best known example of such a proclamation is the Emancipation Proclamation issued by President Abraham Lincoln. This too was an executive order.
Executive orders are the most formal (and most scrutinized) category of executive action. Executive orders often set government-wide policy, and presidents must tread carefully in order to avoid crossing over into the legislative branch’s purview.
Executive orders have the full force of law when Congress has delegated to the executive branch the powers utilized by the president pursuant to the executive order. Washington issued eight executive orders; the first signed on June 8, 1789, which asked the heads of the various departments to “to impress me with a full, precise and distinct general idea of the affairs of the United States.”
One of the most infamous executive orders was Executive Order 9066 (executive orders were not numbered until 1907), issued by President Franklin Delano Roosevelt on Feb. 19, 1942, ordering the internment of Japanese-American citizens. FDR issued a record 3,522 executive orders during his 12 years in office.
President William Henry Harrison, who died 32 days into his term, is the only president who did not issue any executive orders.
Presidential memorandums are, as USA Today recently reported an “executive order by another name” and have become quite popular in recent times. A memorandum often directs a Cabinet member to take a specific action.
President Barack Obama issued 644 presidential memoranda during his two terms. On Feb. 3, Trump issued his Memorandum on Fiduciary Duty Rule, directing the Department of Labor to take a close look at its Fiduciary Duty Rule relating to investment advisers and disclosures to consumers.
The final category of executive action is national security directives, which are considered “the functional equivalent to an executive order” and set forth the president’s national security policies.
Although these directives are often are not disclosed to the public due to the sensitivity of the matters contained therein, Trump has, to date, made his national security directives public.
In its Jan. 31 issue, USA Today published a table identifying the number by category and total number of executive actions issued by every president from Harry Truman to Trump.
Trump issued the most executive actions — 20 — during any president’s first 10 days in office, seven of which were executive orders. Obama issued 18 executive actions within his first 10 days, nine of which were executive orders.
Executive orders are the most formal of executive actions. During the history of the United States, presidents have issued thousands of executive orders. Early presidents issued executive orders sparingly, with the first 16 presidents issuing a total of only 270 — six fewer than Obama issued during his eight years.
The first president to issue more than 100 executive orders was President Ulysses Grant, who issued 217. The five presidents who issued the most executive orders are Franklin Roosevelt (3,522), Woodrow Wilson (1,803) Calvin Coolidge (1,203), Theodore Roosevelt (1,081) and Herbert Hoover (968).
No president since Dwight Eisenhower, who issued 484 executive orders, has issued more than 400, though presidents Ronald Reagan and Richard Nixon came close by issuing 381 and 346 executive orders, respectively.
Executive orders are not immune from challenge on the ground that the president exceeded his powers, and the Supreme Court has held that specific executive orders were unconstitutional.
For example, in Youngstown Sheet & Tube Co. v. Sawyer, the “Steel Seizure Case,” the Supreme Court held 6-3 that Truman exceeded his authority when he issued an executive order directing the commerce secretary to seize steel mills to avert a strike during the Korean War.
In his concurrence, Justice Robert H. Jackson set out the president’s power in three situations: 1) when the president acts in accordance with “an express or implied authorization of Congress,” the president is at his broadest authority; 2) when the president acts without “either a congressional grant or denial of authority,” his power is based only upon reliance of his own independent powers” where there is potential for concurrent authority with Congress; and, 3) when the president acts against the express or implied will of Congress, “his power is at its lowest ebb.”
Jackson found that the seizure by Truman fell within the third category. The Jackson concurrence has subsequently been relied upon when assessing the extent of a president’s authority.
Much has been made of Trump’s use of executive actions, including executive orders, in his first two weeks in office.
While his first 10 day’s activity is a record for modern presidents, it is not by a wide margin over Obama’s first two weeks. Trump will need to issue executive orders at a faster pace if he is to finish in the top five all time and, as with other challenges to presidential authority, his executive actions will face challenges, as we have already witnessed with his executive order on immigration.
Daniel A. Cotter is a partner at Butler Rubin Saltarelli & Boyd LLP and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. The article contains his opinions and is not to be attributed to anyone else. He can be reached at dcotter@butlerrubin.com.