Executive orders are presidential directives that carry the force of law. The president's power to issue executive orders is essentially a legislative one because the orders may require agencies or individuals to perform acts not necessarily mandated by Congress. Executive orders may be used to enforce the Constitution or treaties with foreign countries, implement legislative statutes, or direct bureaucratic agencies.
Although the Constitution does not explicitly grant the power to issue executive orders, it does require the president to “take Care that the Laws be faithfully executed.” Occasionally presidents must act quickly and decisively to fulfill this directive, and the executive order is one way of doing so.
In addition, modern presidents have maintained that Article II of the Constitution grants them inherent power to take whatever actions they judge to be in the nation's best interests so long as those actions are not prohibited by the Constitution or by law. Presidents therefore view executive orders as perfectly acceptable exercises of presidential power, and the Supreme Court generally has upheld this interpretation.
Modern presidents have issued executive orders for a wide range of purposes. At one extreme, executive orders have been used to restrict liberties during time of war. Franklin Roosevelt issued Executive Order 9066 on February 19, 1942, authorizing the secretary of war to prescribe military areas in the United States from which Japanese Americans could be excluded. On the other hand, presidents have used executive orders to safeguard or promote the civil rights of minorities and women. Many orders were applied to executive branch agencies; others altered federal programs after Congress proved unable or unwilling to act. Harry S. Truman used an executive order to integrate the armed forces, John F. Kennedy issued one to bar racial discrimination in federally subsidized housing, and Lyndon B. Johnson used one to require firms that win federal government contracts to create minority hiring programs.
Presidents also have used executive orders to mold and control the federal bureaucracy. Roosevelt used an executive order to centralize budget-making authority in the Executive Office of the President. Richard Nixon and Ronald Reagan used executive orders to increase the authority of the office of management and budget over bureaucratic actions.
Perhaps the most controversial modern use of executive orders has been to create a system for classifying government documents or other information in the name of national security. Executive orders were used to establish, extend, and streamline the classification system.
For many years executive orders were issued without any system of publication or recording. The numbering of executive orders began only in 1907, with numbers assigned retroactively to the time of Abraham Lincoln. Because of haphazard reporting and record keeping throughout much of U.S. history, scholars estimate that many more executive orders were issued than were actually recorded.
To respond to growing concerns that these lax conditions created serious problems for governing and democratic accountability, Congress mandated in 1946 that the number and text of all executive orders be published in the Federal Register, the official U.S. government record of all executive branch announcements, proposals, and regulations. The exception to this rule applies to “classified” executive orders—those pertaining directly to sensitive national security matters, which are entered into the Register by number only.
There are a number of ways for presidents to convey orders to the executive branch in addition to formal “executive orders.” These include directives, findings, and memoranda.
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