What Are Executive Orders? What You Should Know: A Non-Partisan Primer

In the past two weeks, America and the world have watched in fascination as President Trump has issued a flurry of executive actions that have resulted in wide-spread protests and fierce internet conversations. Amidst the kerfuffle, one question keeps popping up: What are executive orders?

Executive Orders: The Basics

An executive order is basically a statement that comes from the president that tells a specific government agency what to do. According to Phillip J. Cooper, a professor at Portland State University, an executive order is a call for the executive branch to take a specific action or change an existing practice. If something grants the president the authority to issue the directive, then the order becomes legal. That authority can come from either a statute of law or the Constitution directly.

It is important to note that an executive order is not the same thing as creating legislation. An executive order is not able to appropriate funds or create a new law; it must work within existing laws and use existing appropriations that have already been set by Congress and the Constitution.

Executive Orders vs. Presidential Memoranda

It’s also important to draw a distinction between an executive order, a presidential memorandum, and directives and proclamations. The latter two serve primarily to dictate how the president and his administration feel about an issue. A presidential memorandum, however, is similar to an executive order, and the two are sometimes considered interchangeable. Both have the force of law behind them, but there are some distinct differences between them.

First, all executive orders are numbered and required to be published in the Federal Register. Memoranda are neither numbered nor required to be published. Currently the Trump administration does publish the memoranda that are written, but it’s not required. Another significant difference is that an executive order must cite the authority that the order is based on. It doesn’t matter if it’s a specific law or a clause in the Constitution, an order must reference it. A memorandum is under no such obligation. As an example, consider the wording at the beginning of Executive Order 13769 (PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES). It begins with the following:

“By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code…”

Contrast this to the Presidential Memorandum Plan to Defeat the Islamic State of Iraq and Syria. Dated January 28, 2017, it makes no reference to authority or rule, it simply begins, “The Islamic State of Iraq and Syria, or ISIS, is not the only threat from radical Islamic terrorism that the United States faces, but it is among the most vicious and aggressive.”

There is no limit to the number of executive orders or memoranda that a president can issue. In 2014, however, Congress issued legislation requiring the White House Office of Management and Budget to report on the cost of executive orders. However, there is no such general provision for presidential memoranda. The only time a memorandum’s cost must be reported is if its estimated cost will exceed $100 million or more.

Can Executive Orders or Memoranda Be Overturned?

There are three ways that an executive order can be circumvented, one for each branch of the government. The first is for Congress to draft legislation that removes funding from the area affected by the executive order. For example, if Congress wanted to go around Executive Order 13768: Border Security and Immigration Enforcement Improvements and the order to begin building the wall, they could draft legislation that removed excess funds from the Department of Homeland Security. Of course, President Trump could just veto the bill, requiring Congress to override the veto with a 2/3 majority vote in both the Senate and the House.

The second way that an executive order can be overturned is through the judicial branch. The Supreme Court can hear a legal challenge to the order and deem it illegal or unconstitutional. In order for them to do so, the order must be challenged at a lower court. Once that happens, if the challenge fails, the appeals process can lead to a hearing in front of the Supreme Court.

The final way that an executive order can be overturned is by the next presidential administration. An incoming president can, by virtue of a new executive order, modify, supersede, or revoke any previous executive order.

Conclusion

There are numerous checks and balances built in to prevent an overreach of power by the executive branch by both the legislative and judicial branches. However, those checks take time to implement, no matter whether the government is Republican or Democratically controlled. Understanding how executive orders work is vital to understanding one of the chief powers of the executive branch.

[Featured Image by Andrea Izzotti/Shutterstock]