This article originally appeared in The Huffington Post on February 2, 2017.
Recently, USA Today savaged President Trump’s executive orders since taking office, from encouraging Keystone XL approval to altering immigration policy, as an “unprecedented blizzard.” In 2014, the Washington Post raked President Obama for his Deferred Action immigration directives, more commonly called DACA and DAPA, deeming them “unprecedented” and “sweeping,” while Ted Cruz published an op-ed in the Wall Street Journal lashing Obama’s “imperial” executive order hiking the minimum wage for federal contractors as one with “no precedent.” A 2009 piece in Mother Jones lamented a President George W. Bush executive order allowing former-presidents and their families to block the release of presidential records as — you guessed it — “unprecedented.”
With all the talk of precedent, you might think executive orders historically did little more than set the White House lawn watering schedule. But the reality is that presidents have long employed executive actions to accomplish strikingly controversial objectives without congressional approval. Their efforts have met with varying degrees of success — both in courts of law and in the court of history.
Prose By Any Other Name
At the outset, the terminology is important. Several different documents are forms of “executive action” by which the president instructs his subordinates in the executive branch how their boss wants them to enforce the law.
The most prominent are “executive orders.” Trump’s order restricting immigration was an executive order. Executive orders are the most formal. They have been numbered since 1907, and a law enacted in the 1930s required most (but not all) to be published in the Federal Register. A JFK-era executive order requires later executive orders to cite legal authority.
“Presidential memoranda,” once called presidential letters, are less formal but still direct agency action just as forcefully as executive orders. In effect, they’re basically the same, but presidential memoranda need not include any of the numbering, authority or even publication features of executive orders (though the Trump and Obama administrations have published many of theirs on the White House website and some in the Federal Register). The Trump administration has begun issuing a new flavor of presidential memoranda called “Presidential National Security Memoranda”; the reorganization of the National Security Council to elevate Steve Bannon and demote military and intelligence officers came in one of these memos.
“Presidential proclamations,” such as Trump’s presidential proclamation declaring his Inauguration Day a “National Day of Patriotic Devotion,” are the least formal and have no mandatory authority within the executive branch. They may be published in the Federal Register, and are generally well respected by executive appointees. They typically include such proclamations as flying flags at half-mast or creating a new national monument.
Executive orders are easier to track these days, with the publication and numbering requirements, but presidential memoranda and proclamations are not. No one knows how many memoranda there are or what they all cover. Historians estimate there may be as many as 50,000 floating around.
The American Precedent
Although there is no explicit constitutional authority for executive actions, all presidents have employed them, and scholars generally accept they are implied by Article II, Section 3’s requirement that the president “take Care that the Laws be faithfully executed.”
Presidents Adams and Monroe issued one executive order apiece during their tenures, the fewest of any president (save President William Harrison, who died after a month in office). President Washington issued eight. Among them are an order that all Americans act “friendly and impartial” in the war between Britain and France, and another establishing a national day of Thanksgiving in late November.
President Lincoln issued 42 executive orders. His General War Order 1 sent Union troops to war against “insurgent forces,” and another ordered the arrest of all newspaper editors favoring the rebellion. The Emancipation Proclamation freeing slaves in southern states was both a presidential proclamation and an executive order. President Grant, a former general used to issuing orders, issued more than 200 of them. Several created modern Indian Reservations, based only on broad congressional authority to relocate Native American tribes.
President Franklin Roosevelt, in contrast, issued nearly 4,000 executive orders. His Executive Order 9066 authorized the removal of any people from military areas “as deemed necessary or desirable.” The military would later define the entire U.S. West Coast as a “military area,” and order the removal of Japanese-Americans to internment camps. (Congress approved funding for internment by statute several months later, after only an hour and a half of debate.) Roosevelt’s Executive Order 7034 organized the Works Progress Administration, one of the central pillars of his response to the Great Depression, which employed more than 3 million people and wielded a budget of nearly $70 billion in 2017 dollars.
The other World War president, Woodrow Wilson, issued nearly 2,000 executive orders, including Executive Order 1885, which established U.S. sovereignty over the Panama Canal Zone. President Truman issued Executive Order 9981, desegregating the military. Executive Order 10730, during the Eisenhower era, sent federal troops to enforce desegregation in Alabama schools. President Kennedy’s Executive Order 10924 established the Peace Corps, while his Executive Order 10925 for the first time required government contractors to take “affirmative action” to ensure non-discrimination in employment. President Johnson’s Executive Order 11246 broke new ground in prohibiting discrimination in federal employment decisions on the basis of race, color, religion, sex, or national origin, and President Ford’s Executive Order 11905 banned political assassination by intelligence agencies.
President Reagan issued 381 executive orders; his Executive Order 12333 established the National Security Agency. President Clinton issued 364 executive orders, including Executive Order 13166, which declared the former Yugoslavia a “combat zone” and initiated military action in Kosovo. The dozen years of both President Bushes saw 457 executive orders on issues ranging from the collapse of the Soviet Union to the War on Terror.
President Obama issued 277 executive orders during his eight-year tenure, which is the fewest for any two-term president since Grover Cleveland. These included Executive Order 13694, sanctioning Russia for cyberattacks during the 2016 elections, and Executive Order 13658, requiring federal contractors to pay an increased minimum wage.
Obama also utilized presidential memoranda and proclamations to accomplish significant goals, and to a somewhat greater extent than prior presidents — Obama probably issued about a third more memoranda than his immediate predecessor, President Bush, and perhaps as many as his executive orders. But presidential memoranda aren’t all counted or published, so it’s hard to know how many either issued precisely. Obama’s published memoranda designated Alaskan coasts off-limits to drilling, altered immigration policy for “Dreamers,” and set government research priorities.
Checked and Balanced
Executive actions can be, and often are, repealed. A new president can simply issue a new executive order or memorandum that withdraws or replaces a previous one. Congress can also legislate to overturn an executive order, or refuse to fund an executive action that requires funding.
The courts have served as an occasional forum for challenging executive orders. In 1952, at the height of the Korean War, strikes at steel mills led President Truman to issue Executive Order 10340, which authorized the Secretary of Commerce to seize and nationalize steel mills and require continuing operation. A lawsuit by the mill owners led the U.S. Supreme Court to strike down Truman’s action as unconstitutional and in excess of his authority under any legislation. The Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer forms the basis for modern jurisprudence on the limits to presidential power.
Similarly, in 1996, President Clinton’s Executive Order 12954, which prohibited federal contractors from replacing striking workers, saw defeat in the U.S. Court of Appeals for the District of Columbia Circuit. That court held the order conflicted with the National Labor Relations Act.
In his first dozen days in office, Trump signed 18 public executive orders and memoranda. Some were long expected and others rather humdrum; the “Mexico City Policy,” a Reagan-era rule that withholds funding to international aid groups that perform abortions irrespective of whether the funds go toward abortion services, has been reversed every time the White House has switched parties. Others, such as the orders purporting to cut federal funding to so-called “Sanctuary Cities” (Executive Order 13768) and to further efforts to build a wall along the Mexican border (Executive Order 13767) have been highly controversial. Trump’s Proclamation 9571 proclaimed a “National School Choice Week,” a first-of-its-kind celebration of private, charter, and home schooling, but not public school. While Trump followed Clinton’s path in signing an executive action on the first day (Executive Order 13765, requiring federal agencies to minimize the burden of the Affordable Care Act), Clinton’s order establishing stricter ethical guidelines for government employees was a lot less divisive.
To be sure, Trump’s 18 executive actions are one less than President Obama’s 19 during the same two-week period. But what is clearly novel is that Trump is making a much bigger and more aggressive show of his early executive actions. Unlike Obama, who tended to sign executive actions privately, Trump likes big signing ceremonies in the Oval Office. A business executive without experience in politics, Trump is likely more comfortable with the immediacy of executive actions than the push-and-pull of crafting legislation. And as a political matter, he probably sees executive actions as a tool to show that he is fulfilling campaign promises quickly and that he stands for “action” and “change.” (One big change, however, is that the Trump administration has not yet sought input from an array of administrative agencies impacted by his executive actions, a stark break with past practice.)
Ultimately, cries of “unprecedented” executive action on both sides are more histrionic than historical. Yet because they are so easily overturned, repealed, or limited by law, presidents have wisely preferred legislation to executive actions when crafting policy. Accordingly, the ultimate impact of Trump’s executive actions thus far (and to come) remains to be seen. Some will surely affect the lives of hundreds or thousands or more, for better or for worse, while others may serve as little more than symbolic point-scoring with partisan constituencies in the next election.
After all, one of President Obama’s first executive actions in 2009, Executive Order 13492, ordered the closure of the Guantanamo Bay detention camp in Cuba. Today, nearly a decade later, the operational camp still houses more than 40 detainees.