What is an Executive Order?
With the issuance of numerous Executive Orders over the tenures of nearly every United States President, and the recent issuance of a set of controversial orders concerning 'Gun Control', I began wondering if I really knew what an Executive Order actually was. Is it legally binding? Can it be undone? Throughout the time I have been politically motivated, I have heard many conflicting stories and opinions pertaining to this. So, I looked into it.
I'll begin by answering the most important question, Is an Executive Order legally binding, is it law? The simple answer would be, Yes, it is legally binding. They allow a President, and states Governor's, to make major decisions, and law, without congressional approval but possessing the same weight as a congressional order or law. The Presidents source of authority, which has been contested various times, to issue Executive Orders is in Article II, Section 1, of the Constitution of the United States of America, which grants the President, 'Executive Power'(Which is where the controversy lies).
As a side note, Section 3 of Article II, directs the President to'..take care that the laws be faithfully executed.'
The ultimate, and, in my opinion, well founded criticism is that the runaway use of Executive Orders could result in a President becoming a virtual Dictator.
Congress has two options to limit the executive branch. Option 1, It may rewrite or amend a previous law. Option 2, Spell out, in greater detail, how the executive branch must act. Of course, the sitting President has the authority to Veto such action. Which, in turn, will require a two thirds majority to overturn an 'Executive Order'. Additionally, 'Executive Orders' can be challenged in court, usually on the grounds that the order deviates from congessional intent or exceeds the Presidents Constitutional power. An example would be President Truman, who, by 'Executive Order', seized control of all steel mills across the country in an effort to settle a labor dispute. The Supreme Court ruled the seizure unconstitutional and exceeded presidentual powers because neither the Constitution or any statute authorized the President to seize privately owned businesses to settle such disputes. However, for the most part, the Supremem Court is quite tolerant of a wide range of 'Executive Orders'.
Almost every President has used the 'Executive Order', most were unpublished and only seen by the angencies involved or affected. In the early 1900's, the State Department began numbering them. Orders were then retroactively numbered going back to 1862, when President Lincoln suspended the writ of habeas corpus and issued the 'Emancipation Proclomation'. Some 'Executive Orders' have not been numbered due to lack of or poor record keeping.
Now, here is where things get fuzzy.
There is more than one type of Executive Order. Different types of orders require different protocols and different rules to follow from one to the next, some quite subtle. First, the 'Executive Order', of which we have discussed. There is the 'Proclamation', which is generally ceremonial or symbolic, i.e., 'Take your kid to work day'. A 'Presidential Directive', formally known as a 'National Security Directive', is an 'Executive Order' issued with the advice and consent of a major agency or department found within the executive branch of the Government. A 'Presidentual Determination' is issued by the White House stating a determination resulting in an official policy or position of the executive branch of the United States government. And, there is the 'Presidential Memorandum', who's only difference from an 'Executive Order' is that is does not get numbered. Memorandums are published in the Federal Register after 'Proclamations' and 'Executive Orders', and, under EO11030, signed by President Kennedy in 1962, an 'Executive Order' must contain a 'Citation of Authority' saying what law it is based on. A memorandum has no such requirement.
Essentially, by issuing his directives by 'Presidential Memorandum' rather than 'Executive Order', a President can downplay the extent of his orders. Our current President uses this to his advantage. obama has signed, as of 12/31/15, 224 'Executive Orders', which, in comparison, is quite in line with many others. But, if you then add in the 'Presidential Memorandums', that number is 198, as of 12/17/14. When these two numbers are taken together, Obama is on track to have taken more high level action than any President since President Truman. In addition, Obama is the first President to use more memorandums than orders. This is how defenders of Obama can say he hasn't issued any more 'Executive Orders' than any other President. Obama has also signed at least 28 'Presidential Policy Directives' in the area of National Security. Which, in a FOIA law suit in 2013, a federal court ruled these directives are the functional equivalent to an 'Executive Order'. The Office of Legal Counsel, who signs off on the legality of these orders, during the first years of the Obama presidency, asked for a 14.5% increase in funding. Justifying its request by, in part, noting the large number of orders that had been issued.
Here's just a little FYI about past 'Executive Orders'. Who signed the least, President William Henry Harrison, signing zero. The most, President Franklin D. Roosevelt, with 3,522. President Truman intergrated the armed services. President Eisenhower desegrigated schools. Presidents Kennedy and Johnson bar racial discrimination in federal housing, hiring and contracting. President Reagan barred the use of federal funds for advocating abortion(later reversed by President Bill Clinton). President Clinton designated 1.7 million acres of southern Utah as the 'Great Staircase' and fought a war with Yugoslavia, all under the authority of the 'Executive Order'. And with well over 13,000 numbered orders, this is but a tiny sample.
As I can see that some feel good measures and some possible emergency measures may make this power necessary, I also feel that this is in direct conflict with our constitution with respect to the idea that no one branch should have the power to act unilaterally and, most disturbingly, unabated.
