When the President makes sure the laws are being faithfully executed he is performing which job?

Executive Orders and Memoranda

President Abraham Lincoln’s Emancipation Proclamation shifted the focus of the Civil War and set the stage for the passage of the 13th Amendment to the United States Constitution which abolished slavery. The Emancipation Proclamation is not just a memorable speech; it is also the most well-known executive order in history. It provided that all slaves in the rebellious states “shall be then, thenceforward, and forever free” almost two years prior to Congress’s ratification of the 13th amendment.

Executive actions play an extremely important role in the President’s ability to enforce the laws of the United States, but have also become more controversial as Presidents continue to use the device more frequently and in unprecedented ways. This presentation discusses the sources of authority that the President can rely on to issue executive orders, the types of executive orders, and differentiates executive orders from executive memoranda.

Sources of Authority for Executive Actions

          The President can draw on three sources to issue an executive action (an executive action is an executive order or memorandum). The first is the Constitution itself. Article II vests the executive power in the President, which gives him the power to oversee and direct the various aspects of the executive branch. The Constitution goes on to charge the President with responsibility to faithfully execute the laws of the United States. This prevents the President from acting in opposition to the law, and an executive order that conflicts with an existing law can be invalidated.

The second source of authority is from the legislative branch. Congress may grant the President or an executive agency the limited power to make rules on certain topics. For example, Congress may vest the Transportation Safety Administration (the TSA) with the power to decide what people can bring onto airplanes. When Congress does this, it is presumed that the President is authorized to issue executive orders to carry out Congress’ goals in passing federal legislation.

The third source for executive actions is the President’s inherent authority, which is defined in Black’s Law Dictionary as “a power that necessarily derives from an office, position, or status.” A President’s inherent authority can fluctuate in scope and acts incidental to both Congress’s and the President’s explicit powers. In the early 1890s, President Grover Cleveland issued an executive order to send US soldiers to end a railroad labor strike that disrupted rail traffic in the Midwest. President Cleveland claimed inherent authority as his justification. When his actions were challenged in court, the Supreme Court agreed with President Cleveland, finding what he did constitutional because he did so under his inherent authority and “incidental powers” to assist Congress in regulating interstate commerce. The Court reasoned that the railroad strike disrupted commercial activity, which limited Congress’s ability to achieve one of its objectives: regulating interstate commerce. President Cleveland was thus helping Congress by ending interference with Congress’ ability to regulate interstate commerce.

Executive Actions and What They Do

          The two most common executive actions are an executive order and the executive memorandum.

An executive order is a written statement that the President issues to “direct or instruct the actions of executive agencies or government officials, or to set policies for the executive branch to follow.” It is signed by the President, approved by the Office of Management and Budget and the Attorney General and is recorded in the federal register. An executive order has the full force and effect of a law enacted by the legislature, except where it is contradicted by other duly passed federal law.[5] Therefore, a President can issue an executive order to bypass Congress’ bureaucracy and advance policy objectives without having to go through the legislative process.

          An executive memorandum is like an executive order, but it does not have the same procedural requirements. Unlike an executive order that must be signed and published, there is no formal process for issuing an executive memorandum. Furthermore, it does not have to be approved by the Office of Management and Budget and the Attorney General, nor must it be recorded in the federal register.

          One example of a forum particularly susceptible to the executive order is military operations. The President, as Commander-in-Chief of the military, is tasked with running the military and may use executive action to set military policy. For example, in 1948, President Harry Truman issued an executive order that desegregated the military. He relied on his authority as Commander-in-Chief to act. President Ronald Reagan relied on the National Security Act of 1947 to issue an executive order which authorized surveillance of certain people and this law also formed the basis for the NSA’s justification to collect data in the early 2000s during the “War on Terror.”[7] 

Executive orders can also be used to outline strategy, such as when President Barack Obama issued an executive order, pursuant to his authority under the Clean Water Act, detailing the federal government’s strategy to restore the Chesapeake Bay. Even more recently, President Donald Trump issued an executive memorandum, which directs his Administration to develop a plan to defeat ISIS.  

How an Executive Order or Memorandum Can Be Terminated

          An executive order or memorandum can be terminated in several ways. The sitting President can rescind an order issued by himself or a previous President or can override the old order by issuing a new order contradicting it. This frequently occurs when a new president takes office and wants to establish new policy goals. For example, when President Obama took office, he issued an executive order that counteracted an executive order signed by President George W. Bush which limited funding for stem cell research. Similarly, when President Trump took office he issued an executive memorandum contradicting President Obama’s previous memorandum concerning the Deferred Action for Childhood Arrivals (or “DACA”) initiative.

          Congress can override an executive order or memorandum expressly or by eliminating the funding necessary to carry it out. Recall that while an executive order has the force of federal law, it is subordinate to federal law that contradicts it. Overriding an executive action is rare, however, because legislation to overrule an executive action by a sitting president will almost certainly be vetoed by that president, and, in today’s hyper-partisan environment, gathering a two-thirds majority necessary to override a presidential veto is difficult.

          Finally, a court can overturn an executive order if the President acted outside of his authority when he issued it. This can be a difficult determination because, when the President issues an order, he usually gives multiple sources for his authority, such as the Constitution, his power as Commander-in-Chief, and a specific statute, to which courts tend to defer. When courts do overturn executive action, it’s usually on the basis that the order violates the civil rights of individuals or groups.

The most famous example of a court overturning an executive action was in in 1952, in Youngstown Sheet & Tube Co. v. Sawyer. There, during the Korean War, President Truman ordered steel mills seized to break up a strike of steel mill workers. The Court held that Truman did not have the authority to issue an executive order seizing steel mills because no specific statute authorized him to do so. His power as Commander-in-Chief did not authorize him to unilaterally take private property. Moreover, Congress had specifically rejected the idea of granting the President the power to seize factories for military production.

In recent years, Congress’s gridlock and increased polarization have pushed presidents to turn to executive actions more and more as substitutes for legislation. This trend will likely continue as our nation’s Commander-in-Chief looks for alternative paths to set and enforce policy.  

The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows:

Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

The electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; and if no person have a majority, then from the five highest on the list the said House shall in like manner choose the President. But in choosing the President, the votes shall be taken by States, the representation from each state having one vote; A quorum for this purpose shall consist of a member or members from two thirds of the states, and a majority of all the states shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice President.

The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President, and the Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected.

The President shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.

Before he enter on the execution of his office, he shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Section 2.

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; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

Section 3.

He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.

Section 4.

The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.