Executive Orders – One of the Building Blocks of Federal Action
Every president since George Washington has used the power of the executive order to achieve policy goals, set uniform standards for managing the executive branch of government, or influence the behavior of private citizens. In Washington’s case, orders were issued requiring executive departments to prepare reports for his inspection, and a proclamation was issued for the Thanksgiving holiday.
Although neither the US Constitution nor any federal statute defines the term “executive order” or explicitly authorizes the president to issue them, the authority for the issuance and implementation of these directives stems from implied constitutional and statutory authority. Moreover, when the substance of an executive order is based on power granted directly to the president under the Constitution or delegated by statute to the president by US Congress, it is well established that the order, including any requirements or prohibitions, will have the force and effect of law.
Issuance of an executive order may be a particularly attractive option when a president has constitutional or statutory authority to create policy by executive order. Taking that route may allow the president to act immediately without waiting for Congress to pass legislation or an agency to use the rulemaking process to promulgate a regulation. According to records at the National Archives, President Franklin Roosevelt issued 3,728 executive orders, the most of any president, as he dealt with the Great Depression and World War II.
Of course, while executive orders offer certain advantages for presidents looking to make policy, they remain subject to our system of checks and balances. For example, because Congress holds the power to appropriate funds, an executive order cannot utilize funds from the US Treasury in excess of the appropriations enacted by Congress. When the president’s authority is authorized by statute, Congress may decide to alter or revoke the relevant provisions of the statute or pass a new law to override the executive order. Like any federal action, an executive order is subject to challenge in federal court. Indeed, concerns about the vulnerability of the Emancipation Proclamation, officially considered an executive order, led President Abraham Lincoln to prioritize ratification of the 13th Amendment to the Constitution.
Finally, it should be noted that each president is generally free to amend, repeal, or replace any executive order, regardless of the source of authority on which it was based, including those issued by previous presidents. Presidents have routinely done so.
Our attorneys and professionals are carefully monitoring executive orders and other directives from the White House. If you and your company are interested in further information, please reach out to your ArentFox Schiff attorney or a member of the firm’s Government Relations practice.
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