Executive Orders: An Introduction

"Executive orders are written instruments through which a President can issue directives to shape policy. Although the U.S. Constitution does not address executive orders and no statute grants the President the general power to issue them, authority to issue such orders is accepted as an inherent aspect of presidential power, though their legal effect depends on various considerations. This report discusses the following:

 Issuance of Executive Orders.
The typical process for issuing an executive order is set forth in an executive order issued by President John F. Kennedy. That process is coordinated by the Office of Management and Budget (OMB), which receives comments and language from impacted and interested agencies. Once OMB and stakeholder agencies have reviewed the draft language, the draft order is sent to the Attorney General and Director of the Office of the Federal Register for review, and then on to the President for signing. After signing, executive orders are generally published in the Federal Register. Not all executive orders go through this process.

 Authority for Executive Orders
Executive orders typically convey presidential directives intended to have the force and effect of law. To have legal effect, those directives must be issued pursuant to one of the President’s sources of power: either Article II of the Constitution or a delegation of power from Congress. One way that Congress can delegate power to the President is by enacting a statute before the order issues. Congress can also ratify an already-issued executive order by enacting a statute, or can in rare circumstances impliedly ratify an executive order through inaction.

 Judicial Review of Executive Orders.
Courts sometimes review the legality of executive orders. For example, a court may determine whether the President may act at all. In those circumstances, the court will employ a three-part analysis articulated by Justice Robert Jackson in his concurring opinion to the Supreme Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer. In other cases, a reviewing court may determine the scope of Congress’s delegation of power to the President. To perform that analysis, courts will generally use traditional tools of statutory interpretation. Courts may also be required to determine the scope of the President’s action in the executive order. Courts will begin with the text of the executive order, and may defer to agency interpretations of that order (depending on the circumstances of the particular case). Separately, courts may also review other constitutional issues raised by the executive order (for example, whether the order violates the First Amendment to the U.S. Constitution).

 Modification and Revocation of Executive Orders.
A President may amend, rescind, or revoke a prior executive order issued by his or an earlier Administration. Although executive orders can be flexible and powerful, they can also be impermanent because a later President can, generally, revoke or modify any previously issued executive order with which he disagrees. Similarly, Congress may nullify the legal effect of an executive order issued pursuant to power that it delegated to the President..."
Executive Orders 

Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities

 

"By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1.  Policy.

Immigrants have helped strengthen America’s families, communities, businesses and workforce, and economy, infusing the United States with creativity, energy, and ingenuity.  The task of enforcing the immigration laws is complex and requires setting priorities to best serve the national interest.  The policy of my Administration is to protect national and border security, address the humanitarian challenges at the southern border, and ensure public health and safety.  We must also adhere to due process of law as we safeguard the dignity and well-being of all families and communities.  My Administration will reset the policies and practices for enforcing civil immigration laws to align enforcement with these values and priorities. 
 

Sec. 2.  Revocation.

Executive Order 13768 of January 25, 2017 (Enhancing Public Safety in the Interior of the United States), is hereby revoked.  The Secretary of State, the Attorney General, the Secretary of Homeland Security, the Director of the Office of Management and Budget, the Director of the Office of Personnel Management, and the heads of any other relevant executive departments and agencies (agencies) shall review any agency actions developed pursuant to Executive Order 13768 and take action, including issuing revised guidance, as appropriate and consistent with applicable law, that advances the policy set forth in section 1 of this order.."
Civil Immigration Enforcement 

Executive Order on Promoting COVID-19 Safety in Domestic and International Travel

"By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1.  Policy.

Science-based public health measures are critical to preventing the spread of coronavirus disease 2019 (COVID-19) by travelers within the United States and those who enter the country from abroad.  The Centers for Disease Control and Prevention (CDC), the Surgeon General, and the National Institutes of Health have concluded that mask-wearing, physical distancing, appropriate ventilation, and timely testing can mitigate the risk of travelers spreading COVID-19.  Accordingly, to save lives and allow all Americans, including the millions of people employed in the transportation industry, to travel and work safely, it is the policy of my Administration to implement these public health measures consistent with CDC guidelines on public modes of transportation and at ports of entry to the United States.
 

Sec. 2.  Immediate Action to Require Mask-Wearing on Certain Domestic Modes of Transportation.
 

(a)  Mask Requirement.  The Secretary of Labor, the Secretary of Health and Human Services (HHS), the Secretary of Transportation (including through the Administrator of the Federal Aviation Administration (FAA)), the Secretary of Homeland Security (including through the Administrator of the Transportation Security Administration (TSA) and the Commandant of the United States Coast Guard), and the heads of any other executive departments and agencies (agencies) that have relevant regulatory authority (heads of agencies) shall immediately take action, to the extent appropriate and consistent with applicable law, to require masks to be worn in compliance with CDC guidelines in or on:
 

(i)    airports;
(ii)   commercial aircraft;
(iii)  trains;
(iv)   public maritime vessels, including ferries;
(v)    intercity bus services; and
(vi)   all forms of public transportation as defined in section 5302 of title 49, United States Code..."
COVID-19 Safety and travel 

Can a President Amend Regulations by Executive Order?

"An executive order signed by President Trump on July 10, 2018, raises the question of whether a President—with the stroke of a pen—can amend federal rules codified in the Code of Federal Regulations (CFR). In Executive Order 13843, the President changed the hiring process for administrative law judges (ALJs), “excepting” them from the competitive service. Somewhat unusually, the order directly amends three provisions in the CFR, rather than directing an agency to amend the regulations. Generally, rules may only be amended through special procedures governed by the Administrative Procedure Act (APA). This process, known as notice-and-comment rulemaking, usually requires advance notice and a period for public comment on proposed rule amendments. As a result, Executive Order 13843 raises the question of whether the President, if otherwise vested with the authority to make rules, could bypass this normal process and directly amend the rule by executive order. Supreme Court precedent suggests that presidential actions, such as executive orders, are not reviewable under the APA. But the APA’s procedural requirements still apply to agencies when they act to implement any presidential directives, raising the question of when presidential action ends and when agency implementation begins. This Sidebar explores the scope of the presidential exception to the normal rulemaking process.

When an agency engages in “rule making,” defined as formulating, amending, or repealing a “rule,” the APA generally requires the agency to follow certain procedures. Unless a rule falls within one of the statutory exceptions, the agency is required to undertake notice-and-comment rulemaking. (For an overview of notice-and-comment rulemaking procedures, see these two CRS Reports.) An agency has to comply with the APA not only when it initially promulgates a rule, but also when its actions constitute a substantive amendment to a rule falling within the APA rulemaking requirements..."
Executive Orders

Presidential Executive Order Regarding the Omnibus Report on Significant Trade Deficits

"

EXECUTIVE ORDER

- - - - - - -

OMNIBUS REPORT ON SIGNIFICANT TRADE DEFICITS

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to ensure the informed exercise of the authority over international trade granted to me by law, it is hereby ordered as follows: 

Section 1.  Policy.  Free and fair trade is critical to the Nation's prosperity, national security, and foreign policy.  It is in America's economic and national security interests to promote commerce by strengthening our relationships with our trading partners, vigorously enforcing our Nation's trade laws, improving the overall conditions for competition and trade, and ensuring the strength of our manufacturing and defense industrial bases.

For many years, the United States has not obtained the full scope of benefits anticipated under a number of international trade agreements or from participating in the World Trade Organization.  The United States annual trade deficit in goods exceeds $700 billion, and the overall trade deficit exceeded $500 billion in 2016...."
Trade deficits

Presidential Executive Order on a Comprehensive Plan for Reorganizing the Executive Branch

"EXECUTIVE ORDER- - - - - - -

COMPREHENSIVE PLAN FOR REORGANIZING THE EXECUTIVE BRANCH

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1.  Purpose.  This order is intended to improve the efficiency, effectiveness, and accountability of the executive branch by directing the Director of the Office of Management and Budget (Director) to propose a plan to reorganize governmental functions and eliminate unnecessary agencies (as defined in section 551(1) of title 5, United States Code), components of agencies, and agency programs.

Sec. 2.  Proposed Plan to Improve the Efficiency, Effectiveness, and Accountability of Federal Agencies, Including, as Appropriate, to Eliminate or Reorganize Unnecessary or Redundant Federal Agencies.  (a)  Within 180 days of the date of this order, the head of each agency shall submit to the Director a proposed plan to reorganize the agency, if appropriate, in order to improve the efficiency, effectiveness, and accountability of that agency. 

(b)  The Director shall publish a notice in the Federal Register inviting the public to suggest improvements in the organization and functioning of the executive branch and shall consider the suggestions when formulating the proposed plan described in subsection (c) of this section..."
Reorganizing the Executive Branch

Presidential Executive Order on Enforcing the Regulatory Reform Agenda

"Executive Order
- - - - - - -

ENFORCING THE REGULATORY REFORM AGENDA

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to lower regulatory burdens on the American people by implementing and enforcing regulatory reform, it is hereby ordered as follows:

Section 1.  Policy.  It is the policy of the United States to alleviate unnecessary regulatory burdens placed on the American people.

Sec. 2.  Regulatory Reform Officers.  (a)  Within 60 days of the date of this order, the head of each agency, except the heads of agencies receiving waivers under section 5 of this order, shall designate an agency official as its Regulatory Reform Officer (RRO).  Each RRO shall oversee the implementation of regulatory reform initiatives and policies to ensure that agencies effectively carry out regulatory reforms, consistent with applicable law.  These initiatives and policies include..."
Presidential regulatory reform

Revision of OMB Circular No. A-130, "Managing Information as a Strategic Resource."

"The Office of Management and Budget (OMB) has revised Circular A-130, "Managing Information as a Strategic Resource," to reflect changes in law and advances in technology. The revisions also ensure consistency with executive orders, presidential directives, recent OMB policy, and National Institute of Standards and Technology standards and guidelines.

The Circular establishes general policy for information governance, acquisitions, records management, open data, workforce, security, and privacy. It also emphasizes the role of both privacy and security in the Federal information life cycle. Importantly, it represents a shift from viewing security and privacy requirements as compliance exercises to understanding security and privacy as crucial elements of a comprehensive, strategic, and continuous risk-based program at Federal agencies..."
Circular A-130

Executive Order -- Using Behavioral Science Insights to Better Serve the American People

"A growing body of evidence demonstrates that behavioral science insights -- research findings from fields such as behavioral economics and psychology about how people make decisions and act on them -- can be used to design government policies to better serve the American people.

Where Federal policies have been designed to reflect behavioral science insights, they have substantially improved outcomes for the individuals, families, communities, and businesses those policies serve. For example, automatic enrollment and automatic escalation in retirement savings plans have made it easier to save for the future, and have helped Americans accumulate billions of dollars in additional retirement savings. Similarly, streamlining the application process for Federal financial aid has made college more financially accessible for millions of students..."
Behavioral Science

Taking Action to Protect Communities and Reduce the Cost of Future Flood Disasters

"Across the country, extreme weather and other impacts of climate change are threatening the health, safety, and prosperity of our communities. This month, NOAA and NASA announced that 2014 was the hottest global year on record.  And as the planet continues to warm, impacts like rising sea levels, intensified storms, and heavy downpours are contributing to an increased risk of flooding. President Obama is committed to ensuring that American communities thrive in the face of a changing climate.  That is why, today, the President signed an Executive Order establishing a flood standard that will reduce the risk and cost of future flood disasters by requiring all Federal investments in and affecting floodplains to meet higher flood risk standards..."
Floods

Executive Orders: Issuance, Modification, and Revocation

"This report first reviews the “definition” of an executive order and how it is distinguishable from

other written instruments, and then provides an overview of the President’s constitutional

authority to issue such directives. Next, the report discusses the legal framework relied on by the

courts to analyze the validity of presidential actions, and also discusses the roles of the President

and Congress in modifying and revoking executive orders.."Executive Orders

HIV Care Continuum Initiative (Executive Order)

"President Obama executive order to "ACCELERATING IMPROVEMENTS IN HIV PREVENTION AND CARE IN THE UNITED STATES THROUGH THE HIV CARE CONTINUUM INITIATIVE.."
executive-order-hiv-care-continuum-initiative

Model Strategies for Recruitment and Hiring of People with Disabilities as Required Under Executive Order 13548
"On July 26, 2010, President Obama issued Executive Order (EO) 13548, which directs Executive departments and agencies to improve their efforts to employ Federal workers with disabilities and targeted disabilities through increased recruitment, hiring, and retention of these individuals. OPM, in consultation with the White House, the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), and the Office of Management and Budget (OMB), has developed, as required by the EO, model recruitment and hiring strategies for agencies to use to increase their employment of people with disabilities. That document is attached to this memorandum.
Agencies now have 120 days from the date of this memorandum to submit their plans for increasing employment of people with disabilities to OPM. The model strategies document contains detailed guidance on what agencies should include in their plans.

Executive Order 13548 demonstrates the President’s strong commitment to making the Federal Government a welcoming place for people with disabilities where they can thrive and make the most of their talents and abilities. We must all make it a priority to do a better job of recruiting, hiring, and retaining people with disabilities. These attached strategies set us on that path. OPM is committed to helping your agency achieve this important goal..."

Executive Order--White House Initiative On Educational Excellence For Hispanics
"By the authority vested in me as President by the Constitution and the laws of the United States of America, to restore the country to its role as the global leader in education, to strengthen the Nation by expanding educational opportunities and improving educational outcomes for Hispanics and Latinos (Hispanics) of all ages, and to help ensure that all Hispanics receive an education that properly prepares them for college, productive careers, and satisfying lives, it is hereby ordered as follows:

Section 1. Policy. At more than 52 million strong, including 4 million in Puerto Rico, Hispanics constitute the country's largest and fastest growing minority group. They have had a profound and positive impact on our country through, among other things, their community's strong commitment to family, faith, hard work, and service. Many Hispanics contribute to this Nation bilingually in the English and Spanish languages -- a true asset for our country in an increasingly global, interdependent world.

Hispanic students are the largest minority group in our Nation's schools, numbering more than 11 million in our public elementary and secondary school system, and constituting more than 22 percent of all pre-K–12 students. Hispanic students face educational challenges of crisis proportions. Fewer than half of all Hispanic children participate in early childhood education programs, and far too few Hispanic students graduate from high school; of those who do complete high school, many are not adequately prepared for college. Only 12 percent of adult Hispanics have a bachelor's degree, and just 3 percent have completed graduate or professional degree programs. At the same time, large numbers of Hispanic adults lack the education or literacy skills they need to advance their careers; they also are less likely than members of other groups to have taken job- or career-related courses, with the exception of basic education classes, such as English as a second language..."

Executive Order-- Reducing Improper Payments and Eliminating Waste in Federal Programs
"By the authority vested in me as President by the Constitution and the laws of the United States of America, and in the interest of reducing payment errors and eliminating waste, fraud, and abuse in Federal programs, it is hereby ordered as follows:

Section 1. Purpose. When the Federal Government makes payments to individuals and businesses as program beneficiaries, grantees, or contractors, or on behalf of program beneficiaries, it must make every effort to confirm that the right recipient is receiving the right payment for the right reason at the right time. The purpose of this order is to reduce improper payments by intensifying efforts to eliminate payment error, waste, fraud, and abuse in the major programs administered by the Federal Government, while continuing to ensure that Federal programs serve and provide access to their intended beneficiaries. No single step will fully achieve these goals. Therefore, this order adopts a comprehensive set of policies, including transparency and public scrutiny of significant payment errors throughout the Federal Government; a focus on identifying and eliminating the highest improper payments; accountability for reducing improper payments among executive branch agencies and officials; and coordinated Federal, State, and local government action in identifying and eliminating improper payments. Because this order targets error, waste, fraud, and abuse -- not legitimate use of Government services -- efforts to reduce improper payments under this order must protect access to Federal programs by their intended beneficiaries..."

New Executive Order from President Barack Obama
EXECUTIVE ORDER -- REVIEW AND DISPOSITION OF INDIVIDUALS DETAINED AT THE GUANTÁNAMO BAY NAVAL BASE AND CLOSURE OF DETENTION FACILITIES

EXECUTIVE ORDER -- REVIEW OF DETENTION POLICY OPTIONS

EXECUTIVE ORDER -- ENSURING LAWFUL INTERROGATIONS

Executive Order: Amending Executive Order 12989, as Amended
[EPIC]"President Bush has signed Executive Order 12989 which gives the Department of Homeland Security authority to review employment eligibility for all federal employees and federal contractors."