Following the aggressive use of Executive Orders (EOs) by President Trump in his first 100 days in office, there has been an increased focus on how the president can use this executive authority to advance his agenda. EOs are official directives from the president to federal agencies and government officials. Unlike memoranda, EOs must be published in the Federal Register. While not explicitly defined in the U.S. Constitution, EOs are an extension of executive power established in Article II, Section 1.
Presidents, as chief executives of a government bureaucracy with hundreds of agencies, use EOs to further the policy objectives of their administrations. From the Emancipation Proclamation to the creation of the Works Project Administration, presidents since George Washington have used EOs to achieve policy goals.
While EOs have spanned the political spectrum, their use is not unlimited. Presidents must issue EOs based on powers established in the Constitution or by statute for the order to have the force and effect of law. For this reason, presidents often begin their EOs with a recognition of their power: “By the authority vested in me as President by the Constitution and the laws of the United States of America, …”
Courts, Congress, and the Power of Future Administrations
While executive orders have the power of law, they are unstable instruments for policy formation. Courts can challenge the legality of EOs, and Congress can repeal EOs by removing their legal effect. Furthermore, presidents can revoke or modify the executive orders of previous administrations, or even their own. This power is exemplified by the Mexico City Policy, first established by executive order by President Reagan,then rescinded by Clinton, reinstated by Bush, rescinded again by Obama, and further reinstated by President Trump. As such, presidents often use executive orders in their first 100 days to direct agencies away from the policies of previous administrations and towards new objectives and campaign promises.
Hunter Hammond is a spring advocacy intern for Signal Group. He is a rising senior at the University of North Carolina – Chapel Hill, double majoring in economics and quantitative political analysis with a minor in philosophy, politics, and economics.