Executive orders are utilized by Presidents to carry out statutory policy and to implement executive initiatives, in both foreign and domestic affairs. They represent a form of administrative lawmaking, and are lawful, so long as they are grounded in statutory authorization or constitutional provisions. In essence, these orders are commands used to take actions or to refrain from taking actions.
The number of executive orders issued throughout American history is unclear. By August 6, 2013, the numbered series had reached 13,651. That number, however, is too modest. The numbering system was based on an effort to track the earliest executive order, characterized as such. That process dates to one issued by President Abraham Lincoln. Since Presidents have issued many orders delineated by some other name, and since there was no uniform process for publishing such orders until the passage of the Federal Register Act in 1935, the present numbering system is merely an approximation. Scholarly estimates suggest that some 50,000 executive orders, by some name, have been issued since the Washington Administration.
Executive orders are legally binding, if they are grounded on statutes or constitutional norms found in Article II. Presidents may not promulgate an executive order that violates a statute or usurps congressional power. Federal courts have held that Congress may ratify an executive order after it has been issued, as a means or erasing doubts about the legal validity of the order. Thus, in the immediate aftermath of President Franklin D. Roosevelt’s Executive Order 9066, issued on February 19, 1942, requiring the removal of Americans of Japanese descent from the West Coast, Congress enacted a statute ratifying the order. Whether the order would have found legal footing on its own accord is unclear, since the Japanese Internment Cases upholding the relocation policy did so based on both the executive order and statutory approval.
The legal validity of an executive order is not contingent upon its labeling as an executive order. The Supreme Court has held that there is no meaningful legal distinction between, for example, an executive order and a presidential proclamation. As a matter of course, proclamations are directed to people outside the government, while executive orders govern the actions of governmental officials and agencies. Proclamations may be used for hortatory purposes such as a nation day of celebration, but they have been used for important purposes, including President Washington’s Neutrality Proclamation or President Lincoln’s Emancipation Proclamation.
President Washington’s “Proclamation of Neutrality” in the war between England and France in 1793, represents the first instance of unilateral executive lawmaking. Washington, who invoked the law of nations as authority to declare U.S. neutrality in the war and prohibit American citizens from supporting one side or the other, soon learned that enforcement of his proclamation depended on the willingness of jurors to convict those accused of violating it. But jurors understood that the creation of criminal law in the United States required enactment of statutes passed by Congress. Accordingly, a jury to refuse to convict Gideon Henfield for violating Washington’s proclamation. As a result, Washington turned to Congress in December of 1793 and left it to lawmakers to “correct, improve or enforce” the policy established by his administration. In response, Congress passed The Neutrality Act of 1794, which provided the legal basis that Washington needed to issue his neutrality proclamation, and established that Congress, as the repository of the war power, possessed the constitutional authority to determine whether the United States would remain neutral in military conflicts. Washington, who feared accusations of usurpation of power, and wondered whether he had the power to issue the proclamation, happily signed the measure into law.
Executive Orders and proclamations across two centuries often have sought to alter the legal, political and policy landscape in the United States. Few presidential proclamations have won the historical acclaim achieved by President Abraham Lincoln’s Emancipation Proclamation, issued on January 1, 1863. Lincoln’s order, freeing slaves in states that were in rebellion against the Union, was grounded in his authority as Commander in Chief which, under the laws of war, permitted him—and all commanders in chief in times of war—to confiscate enemy property, if he determined that it would weaken the capacity of the confederacy to wage hostilities. Lincoln’s proclamation, while unilateral in nature, also implemented earlier congressional confiscation acts, which authorized the seizure of all property (including slaves) of southern states that had taken up arms against the Union.
President Franklin Roosevelt issued 674 executive orders in his first 15 months in office as a means of trying to reinvigorate the nation’s economy. In 1933, Congress passed the National Recovery Act, which created the National Recovery Administration (NRA). In 1934, the NRA promulgated hundreds of codes and released nearly 3,000 administrative orders that approved or modified the codes. The administration was so busy and issued so many orders that it could not keep track of all of its activities. As a consequence, the government learned that it had obtained an indictment and brought an appeal to the U.S. Supreme Court in Panama Refining Co. v. Ryan (1935), without realizing that the section of the regulation on which the proceeding was based had been eliminated by an executive order. When the Court, in Ryan, struck down a portion of the NRA on grounds that it violated the delegation doctrine, it also struck down the executive orders that President Roosevelt had issued to enforce the statute. In response to the chaos that enveloped the NRA, Congress enacted in 1935 a statute creating the Federal Register in which all presidential and agency documents of the effect of law would be published.
One of the most notorious executive orders ever conceived and implemented, was Executive Order No. 9066, issued by President Roosevelt on February 19, 1942. The order required the transfer of some 125,000 American citizens of Japanese descent from their homes on the West Coast to inland “relocation centers.” FDR invoked as constitutional authority for his order, the Commander in Chief Clause and the “authority vested in me as President of the United States.” There was no evidence of disloyalty or subversive activity among these Japanese-American citizens, and no criminal charges were brought by the U.S. government. No hearings were afforded, and the punishment was imposed based purely on ancestry and race. FDR’s executive order was ratified by Congress and the Supreme Court, in two decisions—1943 and 1944—upheld the curfew and detention components of the relocation program. Scholars subsequently exposed the constitutional infirmities of the treatment of Japanese-American citizens, including 14th Amendment violations, President Reagan and Congress issued apologies for the “errors and injustice” of the relocation program, and Congress, in 1992, enacted legislation compensating surviving victims for the losses that they suffered.
Among other prominent, but constitutionally flawed executive orders, was President Harry Truman’s Executive Order No. 10340, directing Secretary of Commerce Sawyer to seize and operate the steel mills, in the face of a nationwide steel strike. Truman feared that the strike would jeopardize America’s commitment to rebuild Europe in the post-World War II years, and undermine his ability to prosecute the war in Korea. In Youngstown Sheet and Tube Co. v. Sawyer, better know as the Steel Seizure Case (1952), the Supreme Court struck down Truman’s order, rejecting the administration’s assertion of inherent presidential power and the Commander in Chief Clause.