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What are Executive Orders?

President Obama’s proposals to use executive orders to deal with gun violence and climate change has lead to complaints about abuse of executive power. Legal Lad examines the use and abuse of executive orders.

By
Adam Freedman
March 8, 2013

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Today’s Topic: What are Executive Orders?

And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

Controversy Over Executive Orders

President Obama’s recent proposals to use executive orders to deal with gun violence and climate change have led to controversy on Capitol Hill, with one congressman even suggesting that impeachment might be appropriate. In this episode, I’ll explain what “executive orders” are, and why they’re often controversial.

What are Executive Orders?

Executive orders constitute one category of “presidential directive,” which is a broad term referring to all written instructions and declarations issued by the president of the United States. Although the Constitution does not expressly authorize executive orders, they are arguably implied by those provisions in the Constitution that give the president power to run the executive branch, command the army, and manage foreign relations. How on earth could anybody do those jobs without putting things in writing? 

FDR Issued the Most Executive Orders

Not surprisingly, every president since George Washington has issued written directives of one sort or another.  It was Abraham Lincoln, however, who is credited with coining the term “executive order” in 1862. As a wartime leader, Lincoln had to issue numerous orders in his role as Commander in Chief. In modern history, the highest number of executive orders was issued by Woodrow Wilson – who was president during World War I – and Franklin Delano Roosevelt, who served during World War II. Indeed, FDR tops the charts at 3,728 executive orders. Even taking into account the fact that FDR held office longer than any other president, he still issued more orders per year than any other president.

Separation of Powers Concerns

Executive orders are sometimes controversial; particularly when the president appears to be encroaching on the powers of the legislative branch. Under the separation of powers doctrine, only Congress can exercise legislative power; that is, only Congress can make laws, or change existing laws, impose taxes or direct federal spending. At times, presidents are tempted to veer into that territory. In 1995, for example, President Clinton issued an executive order prohibiting companies from hiring replacement workers for workers who went on strike. The problem was that this order contradicted federal labor law – and only Congress has the power to change that law. The executive order was eventually overturned by a unanimous decision of the U.S. Court of Appeals for the DC Circuit.

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