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Executive Summary #2es on Legal Issues

February 21, 2001

Executive Summary: The Use and Abuse of Executive Orders and Other Presidential Directives

By

In recent years, there has been renewed interest in the use and abuse of executive orders and other presidential directives. Many citizens and lawmakers expressed concern over the content and scope of several of President Bill Clinton's executive orders and land proclamations. Congress responded with hearings and the consideration of several bills designed to curb the President's authority to issue such directives. In an exceedingly rare act, the courts even reacted by striking down one of President Clinton's executive orders.

Despite the increased public attention focused on executive orders and similar directives, public understanding regarding the legal foundation and proper uses of such presidential decrees is limited. Thus, the increased public attention generally has been accompanied by confusion or misunderstanding regarding the appropriateness of various presidential actions. The accompanying legal memorandum provides an overview of the President's use of executive directives, including a discussion of the historical practice, sources of presidential authority, the legal framework of analysis, and proposals to prevent abuses.

From the founding of our nation, American Presidents have developed and used various types of presidential "directives." The best-known directives are executive orders and presidential proclamations, but many other documents have a similar function and effect. Reduced to their common core, presidential directives are simply written, rather than oral, instructions or declarations issued by the President. Authority for these directives must come from either the Constitution or statutory delegations.

Yet the President's authority to issue directives goes beyond express language in the Constitution or statutes that grant him such power. He possesses additional authority to issue directives where that is the reasonable implication of the power granted (implied authority) or if it is inherent in the nature of the power conferred (inherent authority). The Constitution vests the President with the duties of commander in chief, head of state, chief law enforcement officer, and head of the executive branch. When the President is lawfully exercising one of these responsibilities conferred by Article II of the Constitution, the scope of his power to issue written directives is especially broad, and Congress has little ability to regulate or circumscribe the President's use of written directives.

Nevertheless, the President's power to issue executive decrees is limited--by the scope of his powers and by other authority granted to Congress. If the President's authority is derived from a statutory grant of power, Congress remains free to negate or modify the underlying authority. Congress also has some latitude in defining the procedures the President must undertake in the exercise of that authority, although there are some constitutional limits to Congress's power to micromanage the President's enforcement or decision-making procedures.

Because the constitutional separation of powers both supports and limits a President's power to issue executive directives, it is natural that some friction exists in the exercise of that power. Over the past 60 years, presidential authority to issue certain decrees has been tested in court (although many executive directives remain difficult to challenge in court), and a legal framework of analysis for the legitimacy of this power has evolved. The interplay between Congress and the White House varies depending on the aggressiveness of the President and Congress's reaction to it.

During the previous Administration, President Clinton proudly publicized his use of executive decrees in situations where he failed to achieve a legislative objective. Moreover, he repeatedly flaunted his executive order power to curry favor with narrow or partisan special interests. A review of Clinton's executive orders shows that the number issued by him is not significantly different from the number issued by Presidents Ronald Reagan or George H. W. Bush. Yet the true measure of abuse is not the overall number of directives, but whether any of them were illegal or improper, and if so, how significant they may have been.

A review of President Clinton's directives also reveals some important departures from the practices of his two predecessors. This is particularly true of his use (and abuse) of powers under the Antiquities Act of 1906 and numerous directives issued in the areas of foreign and defense policy, environmental policy, regulatory review, labor policy, and civil rights. A disproportionate number of these executive directives were either illegal or issued in the furtherance of an improper policy or political objective. One of President George W. Bush's priorities should be to review, revise, or rescind the most troublesome of these.

Predictably, the 106th Congress considered several measures designed to rein in the past President's abuses. H.R. 2655 attempted, in part, to define presidential directives more precisely and to require that all executive decrees specify the constitutional and statutory basis for any action incorporated in such directives. Both of these provisions are worthy of further consideration. Yet provisions of other bills were problematic and might be unconstitutional in application. Internal reforms initiated by the President may have a more lasting effect and are often more workable. Because few reforms can be imposed on a President over his veto, it makes sense for Congress to work with the new President on such reforms rather than overreact to the abuses of the last President.

Todd F. Gaziano is Senior Fellow in Legal Studies and Director of the Center for Legal and Judicial Studies at The Heritage Foundation.

Endnote

1. The review of President Clinton's proclamations was a collaborative effort by several scholars at The Heritage Foundation, including substantial contributions by Angela Antonelli, Dan Fisk, Mark Wilson, and Christopher Summers.

Nothing written here is to be construed as legal advice on any matter, as an attempt to create an attorney-client relationship, or as an attempt to aid or hinder the passage of any matter pending before Congress.

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