In his first 11 days as head of the Executive Branch, Donald Trump has penned more than a dozen “executive orders” and “memorandums”. What these are is not easy to define. The “authority to issue executive orders and memorandums doesn’t appear in the Constitution” (1). However, some sources refute that by claiming the authority “…can be found in the Article II, Section 1 of the Constitution which grants to the President the ‘executive Power’.” (2) Essentially, these “executive orders” call upon some department or agency inside the Executive Branch to do something. That something can’t be in violation of an existing law, and it appears that it must be within the powers granted to the President by statute or from the Constitution.
A memorandum differs from an order in that an order must be sent to the Federal Register and issued an identifying number and then it must be published. Memorandums do not have to be published and the only way to know about a memorandum is if the President chooses to make it public. (3) By convention, Presidents have treated executive memorandums equally as binding as executive orders, but there is no legal precedent for that. (4). Executive Orders do not require Congressional approval, but they carry the same weight as Congressional legislation (5).
A special type of Executive Order is called “Presidential Decision Directives” which are orders given after analysis and input by the National Security Council (6). By my count, these particular orders have been called 16 different things since 1947, which can make researching them somewhat more challenging. Furthermore, because these often deal with sensitive National Defense and Diplomacy issues, they are often classified. These carry the full force of law.
Executive Orders have been used by every President since George Washington (7). Prior to 1862, they weren’t tracked very well, and many have likely been lost to history. They are often used to explain how a law passed by Congress is to be implemented. Other significant executive orders have included Harry Truman’s order to integrate the US Armed Forces, President Eisenhower’s order to desegregate schools, and Presidents Kennedy and Johnson used them to bar racial discrimination in federal housing, hiring, and contracting (8).
There are three ways to change an Executive Order. One, a subsequent President can simply write another Executive Order changing the previous one (President Reagan wrote one banning abortion; President Clinton wrote one countermanding it.). Congress can overturn an executive order by 2/3 majority – of the 15,284 Executive Orders issued I have not been able to find any instance of this happening. A de facto reversal of President Obama’s Executive Order 13492, which sought to close the Guantanamo Detention Facility, was blocked by Congress because they forbid him using any funds to enact his order (9). The third way is to challenge it in court – this looks to have been successful seven times.
By comparison, here are some stats on previous Presidents and the number of Executive Orders they issued (10):
George Washington – 8 (as average of 1 per year)
William Harrison – 0 (He died after only 31 days in office)
Franklin Roosevelt – 3522 (an average of 293 per year)
Barak Obama – 276 (an average of 34.5 per year)
Donald Trump – 12 (On track for 398 per year)
With a clear Republican majority in Congress, a majority Republican Governors, and potentially a Conservative Supreme Court, you would think that a president would not need to use the Executive Order to create legislation. This makes Trump’s orgy of Executive Orders seem frightening and strange. Executive Orders are a way for the President to rule with little oversight. The fact that he is using them when he could be working with a sympathetic Congress to get legislation passed with little resistance is alarming.
It is my belief that Executive Orders run contrary to the intent of the Constitution, which seeks to limit the ability of one branch of government to dominate the others. As such, I believe that they should be used sparingly. We have three branches of government built with checks and balances to ensure that many smart, experienced people are involved in decisions that affect not only the United States, but the entire world. Executive Orders circumvent this.
Daniel Cashman, EAMP, MS (AOM), NCCAOM Dipl. Acupuncture
Executive Orders Passed By Donald Trump 20 Jan-31 Jan 2017 (11)
20 Jan 17 Executive Order Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal
24 Jan 17 Executive Order Expediting Environmental Reviews and Approvals For High Priority Infrastructure Projects
25 Jan 17 Executive Order: Enhancing Public Safety in the Interior of the United States
25 Jan 17 Executive Order: Border Security and Immigration Enforcement Improvements
27 Jan 17 EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES
28 Jan 17 Executive Order: ETHICS COMMITMENTS BY EXECUTIVE BRANCH APPOINTEES
30 Jan 17 Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs