Ilona Nickels
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Accountability of Elected Officials
Career Paths to Congress
Chaplains in the U.S. Congress
House Ethics Process
House/Senate Differences
Lame Duck Congress: Attendance and Voting
Members of Congress: A Job Description
Members of Congress: Who Do They Represent?
Oath of Office for Members of Congress
Pledge of Allegiance: Standing for the Pledge
Pledge of Allegiance: Use in Congress
Qualifications to Run for Congress
Senate: 50-50 Split?
Senate Majority Leader: A Job Description
Sessions of Congress: Lengths
Size of House and Senate
Speaker of the House: a Job Description
Amending the Constitution
Constitutionality of Legislation
August Recesses
First Congress
GOP: Origins of Term
Ideology: Left or Right
Lame Duck Congress: Definition
Party Animals: the Donkey and the Elephant
Statue of Freedom
U.S. Citizenship Test
Amendment Tree in the Senate
Changing a Law
Conference Committees: In Decline
Conference Committees: Procedures
“Deem and Pass” Procedure
Executive Orders
Holds in the Senate
How to Find Basic Legislative Information
How to Keep Up With Congress
Types of Legislation

Capitol Corner

Executive Orders

If Republicans take over both the House and Senate, is it true that President Obama can get around them by issuing “Executive Orders.” Can you explain that?

Executive Orders by Ilona NickelsExecutive orders are Presidential directives with the force of law, and, you are right, they do not require the approval of Congress to take effect. All modern Presidents have made heavy use of the Executive Order as a policy tool to circumvent Congress.

Executive orders can be challenged formally in two ways: (1) a lawsuit could be brought if it is felt that the Order contradicts the legislative intent of the original policy set by Congress, or if it has no underlying statutory authority to begin with, or (2) Congress could pass a bill repealing or modifying a specific Executive Order. At times, Congress has passed legislation to negate or modify a specific executive order. However, when it has, the President has often vetoed the new law and Congress has not always had the 2/3 majority vote in both chambers to override his veto.

Executive Orders are controversial precisely because they allow Presidents to infringe on the power of Congress to make laws. They do so by requiring federal agencies and private citizens and companies to take actions that may never have received legislative review or approval.

Congress often leaves considerable leeway to the executive branch to implement the laws it enacts. Details are often left out of statutory language either because of a desire to leave the federal agencies involved some flexibility in carrying out the law, or simply because Congress feels unable or unwilling to spell out every detail for a bill's execution. As a result, Presidents have often interpreted their statutory authority granted in the broadest sense.

The Constitution is silent on the subject of Executive Orders, but the courts have upheld them in principle based on the implied powers inherent in the grant of "executive power" to the President in Article II, section 1 and in the constitutional language in Article II, section 3, that says Presidents are "to take care that the laws be faithfully executed." In addition to this general constitutional authority, some Executive Orders are issued under direct statutory authority delegated specifically to the President by Congress in limited policy areas.

The Supreme Court has heard numerous cases involving Executive Orders. It has overturned some as exceeding Presidential powers or as usurping the powers of the legislative branch, by changing the policy direction enacted into law by Congress. It has upheld others as appropriately within the framework of the President's authority to implement laws already on the books.

Presidents have made heavy use of the Executive Order as a policy tool to circumvent Congresses who were opposing them or to respond quickly to national emergencies. President Roosevelt used an Executive Order to seize aviation and ship-building plants in 1941 for war use. Harry Truman used one to integrate the armed forces. President Eisenhower used an Executive Order to implement school desegregation, as did John Kennedy. President Kennedy also used an Executive Order to bar racial discrimination in federally subsidized housing. Lyndon Johnson used one to require that companies seeking federal contracts must have in place a minority-hiring plan. President Ronald Reagan used an Executive Order to prohibit family planning clinics that receive federal funds from advocating abortion to their clients. President Jimmy Carter used an Executive Order to direct the Justice Department to cease prosecuting Vietnam War draft evaders.

Both President George H.W. Bush (Kuwait) and President Clinton (Bosnia) ordered troops into combat via Executive Order. After the 9/11 attacks, President George W. Bush issued an entire series of Executive Orders, e.g. to call the Ready Reserves to active duty, to block the financing of terrorist organizations, and to create a Department of Homeland Security (later sanctioned by Congress.) President Obama has issued about 65 Executive Orders to date – including ones to remove barriers to scientific research involving human stem cells and to change detention policies at the Guantanamo Bay Naval Base and order its closure.

You can see a list of all Executive Orders [and their text] issued by recent Presidents on the website of the National Archives.