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Executive Order

From lawbrain.com

A presidential policy directive that implements or interprets a federal statute, a constitutional provision, or a treaty.

The president's power to issue executive orders comes from Congress and the U.S. Constitution. Executive orders differ from presidential proclamations, which are used largely for ceremonial and honorary purposes, such as declaring National Newspaper Carrier Appreciation Day.

Executive orders do not require congressional approval. Thus, the president can use them to set policy while avoiding public debate and opposition. Presidents have used executive orders to direct a range of activities, including establishing migratory bird refuges; putting Japanese Americans in internment camps during World War II; discharging civilian government employees who had been disloyal, following World War II; enlarging national forests; prohibiting racial discrimination in housing; pardoning Vietnam War draft evaders; giving federal workers the right to bargain collectively; keeping the federal workplace drug free; and sending U.S. troops to Bosnia.

Historically, executive orders related to routine administrative matters and to the internal operations of federal agencies, such as amending Civil Service Rules and overseeing the administration of public lands. More recently, presidents have used executive orders to carry out legislative policies and programs. As a result, the executive order has become a critical tool in presidential policy making. For example, President John F. Kennedy used an executive order to eliminate racial discrimination in federally funded housing (Exec. Order No. 11,063, 3 C.F.R. 652 [1959–1963], reprinted in 42 U.S.C.A. § 1982 app. at 6-8 [1982]); President Lyndon B. Johnson acted through an executive order to prohibit discrimination in government contractors' hiring practices (Exec. Order No. 11,246, 3C.F.R. 339 [1964–1965], reprinted in 42 U.S.C.A. § 2000e app. at 28-31 [1982], amended by Exec. Order No. 11,375, 3 C.F.R. 684 [1966–1970], superseded by Exec. Order No. 11,478, 3 C.F.R. 803 [1966–1970], reprinted in 42 U.S.C.A. § 2000e app. at 31-33 [1982]); and President Richard M. Nixon used an executive order to set a ninety-day freeze on all prices, rents, wages, and salaries in reaction to rising inflation and unemployment (Exec. Order No. 11,615, 3C.F.R. 602 [1971–1975], amended by Exec. Order No. 11,617, 3 C.F.R. 609 [1971–1975], superseded by Exec. Order No. 11,627, 3 C.F.R. 621 [1971–1975]).

Most executive orders are issued under specific statutory authority from Congress and have the force and effect of law. Such executive orders usually impose sanctions, determine legal rights, limit agency discretion, and require immediate compliance. Federal courts consider such orders to be the equivalent of federal statutes. In addition, regulations that are enacted to carry out these executive orders have the status of law as long as they reasonably relate to the statutory authority. An administrative action that is carried out under a valid executive order is similar to an agency action that is carried out under a federal statute. In each case, the agency's authority to enact rules and to issue orders comes from Congress.

Absent specific statutory authority, an executive order may have the force and effect of law if Congress has acquiesced in a long-standing executive practice that is well-known to it. For example, in Dames v. Regan, 453 U.S. 654, 101 S. Ct. 2972, 69 L. Ed. 2d 918 (1981), the U.S. Supreme Court upheld various executive orders that suspended claims of U.S. nationals arising out of the Iranian hostage crisis, citing Congress's acquiescence in a 180-year-old practice of settling U.S. citizens' claims against foreign governments by executive agreement. In describing the situation before it, the Court stated,

We freely confess that we are obviously deciding only one more episode in the never-ending tension between the President exercising the executive authority in a world that presents each day some new challenge with which he must deal and the Constitution under which we all live and which no one disputes embodies some sort of system of checks and balances.

Executive orders also may be authorized by the president's independent constitutional authority (Cunningham v. Neagle, 135 U.S. 1, 10S. Ct. 658, 34 L. Ed. 55 [1890]). Various clauses of the U.S. Constitution have been cited to support the issuance of executive orders. Among them are the Vestiture Clause, which states, "The executive Power shall be vested in a President of the United States of America" (art. II, § 1, cl. 1); the Take Care Clause, which states that the president "shall take Care that the Laws be faithfully executed" (art. II, § 3); and the Commander in Chief Clause, which states that the president "shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States" (art. II, § 2, cl. 1).

Executive orders often omit citing a specific constitutional provision as authority. For example, Executive Order No. 11,246 (3 C.F.R. 339 [1964–1965 Comp.]), which prohibits discrimination in federal employment, simply states, "Under and by virtue of the authority vested in me as President of the United States by the Constitution and statutes of the United States, it is ordered as follows …"

Some executive orders issued pursuant to the president's independent constitutional authority have been criticized as implementing what has been called essentially executive managerial policy. Although this type of order is directed toward public officials, it also may affect private interests, through the actions of such officials. For example, Executive Order No. 11,246, which prohibits discrimination in federal procurement and employment, affects the interests of federal contractors and their employees; Executive Order No. 10,988 (3 C.F.R. 521 [1959–1963 Comp.]), which extends collective bargaining to the federal workforce, affects federal workers; and Executive Order No. 12,291 (3 C.F.R. 127 [1982]), which imposes controls on administrative rule making, affects individuals who are subject to administrative regulations.

Lawsuits that are brought in order to force federal agencies to comply with executive orders are usually dismissed by the courts on the ground that the orders do not provide a cause of action (i.e., a right to judicial relief). For example, in Acevedo v. Nassau County, 500 F.2d 1078 (2d Cir. 1974), low-income minority groups claimed that the General Services Administration had violated Executive Order No. 11,512 (35 Fed. Reg. 3,979 [1970]) by planning a federal office building without considering the adequacy of low-income housing in the area. The federal court of appeals refused to decide the claim because the plaintiffs lacked standing (i.e., a legally protectible interest). In Manhattan-Bronx Postal Union v. Gronouski, 350 F.2d 451 (D.C. Cir. 1965), the court denied a claim against the postmaster general for violating Executive Order No. 10,988 (3 C.F.R. 521 [1959–1963]), because the president had not granted a right of action. In Independent Meat Packers Ass'n v. Butz, 526 F.2d 228 (8th Cir. 1975), the appellate court stated that to infer a cause of action would create "a serious risk that a series of protracted lawsuits brought by persons with little at stake would paralyze the rulemaking functions of federal administrative agencies."

Similarly, the courts generally reject claims against private defendants for violations of executive orders. For example, in Cohen v. Illinois Institute of Technology, 524 F.2d 818 (7th Cir. 1975), 425 U.S. 943, 96 S. Ct. 1683, 48 L. Ed. 2d 187 (1976), the appellate court denied a professor's claim against a university to recover damages for sex discrimination in violation of Executive Order No. 11,246, stating that the executive order could not give rise to an independent private cause of action.

To have the effect of law, executive orders must appear in the Federal Register, the daily publication of federal rules and regulations. Executive orders are also compiled annually and are published in the Code of Federal Regulations. Selected orders are published with related statutes in U.S. Code Annotated and U.S. Code Service.

Executive orders have been used to influence issues in hundreds of areas. War-related activities are among the most frequently addressed. For example, in September 1939, President Franklin D. Roosevelt prescribed regulations governing the enforcement of the neutrality of the United States "in the war then being fought between Germany and France; Poland; and the United Kingdom, India, Australia, and New Zealand" (Exec. Order No. 8,233, 4 Fed. Reg. 3,822). By February 1942, the United States had joined World War II, and Roosevelt had ordered the confinement of Japanese-Americans to internment camps following the bombing of Pearl Harbor in January 1941 (Exec. Order No. 9,066, 7 Fed. Reg. 1,407). In March 1947, following the war, President Harry S. Truman established loyalty review boards to discharge civilian government employees who had been disloyal during the war (Exec. Order No. 9835, 3 C.F.R. 627 (1943–1948), revoked by Exec. Order No. 10,450, 3 C.F.R. 936 (1949–1953). In January 1977, following the Vietnam War, President Jimmy Carter directed the U.S. attorney general to cease investigating and indicting Vietnam War draft evaders (Exec. Order No. 11,967, 42 Fed. Reg. 4,393). In December 1995, President Bill Clinton ordered the U.S. reserve armed forces into active duty to augment the active armed forces' operations in and around the former Yugoslavia (Bosnia) (Exec. Order No. 12,982, 60 Fed. Reg. 63,895).

Following the September 11th 2001 terrorist attacks on the United States, President georgew. bush used his authority to issue a number of executive orders. Following his declaration of a national emergency on September 14, 2001, he called members of the armed forces' Ready Reserve to active duty (Exec. Order No. 13,223, 66 Fed. Reg. 48201). Ten days later, he issued an executive order that blocked the financing of terrorist organizations (Exec. Order No 13,224, 66 Fed Reg. 49079). President Bush also created the Homeland Security Department by executive order, before Congress authorized this cabinet-level department (Exec. Order No. 12,228, 66 Fed.Reg. 51812).

Further Readings

Anderson, Leanna M. 2002. "Executive Orders, 'The Very Definition of Tyranny,' and the Congressional Solution, and the Separation of Powers Restoration Act." Hastings Constitutional Law Quarterly 29 (spring): 589-611.

Ostrow, Steven. 1987. "Enforcing Executive Orders: Judicial Review of Agency Action under the Administrative Procedure Act." George Washington Law Review 55.

Raven-Hansen, Peter. 1983. "Making Agencies Follow Orders: Judicial Review of Agency Violations of Executive Order 12,291." Duke Law Journal.

Sterling, John A. 2000. "Above the Law: Evolution of Executive Orders." University of West Los Angeles Law Review 31 (annual).

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