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Ask Civics 101: What Is An Executive Order?

Today's Ask Civics 101 question: What is an executive order? Read on, or listen to this short podcast episode for the answer.

Do you have a question for the Civics 101 team? Click here to submit it.

We spoke with Casey Dominguez, a professor of political science at the University of San Diego on this one.

"An executive order is a directive or an order that is that the president issues to people who work in the executive branch," Casey explains, "executive order requires those employees to take or stop taking an action or to change a policy or to change a management practice or to accept some kind of a delegation of authority."

When Casey says “people who work in the executive branch,” remember that’s over four million Americans. Executive orders don’t go through Congress. They’re not voted on, they’re purely a presidential power and they just, well, happen.

The most famous is probably the Emancipation Proclamation. President Lincoln proclaimed that all enslaved persons, in confederate states only, "shall henceforth be free."

In 1933, Franklin Delano Roosevelt wrote an order that created the Works Progress Administration. Roosevelt also, in response to the bombing of Pearl Harbor in 1941, wrote one that gave the military a power which resulted in 120,000 Americans being put in internment camps.

But most executive orders are not this well known.

"Executive orders go all the way back to Washington," Casey explains, "for a long time in history, executive orders were informal. That is, the presidents would issue them. They weren't even necessarily catalogued. They weren't numbered. And then in the mid 20th century, Congress decided that these were important  actions and that they needed to be numbered and made official and that they were part of official policy. And since then, they've had to be numbered and published in the Federal Register."

Every executive order is now supposed to be published in the Federal Register. Presidents can get around this, however, by issuing orders via another name, like "proclamation", "memorandum", or "national security directive."

This does not, however, grant the president power on the level of a unilateral legislator. "They don't have the status of law that's been passed by Congress," Casey explains, "and so they can be overturned by Congress, they can be overturned by the courts, and they can also be overturned by the next president. And so we often see, particularly when the presidency changes parties, executive orders that were issued by one president being more or less immediately reversed by the next president."

Courts can deem the orders unconstitutional and Congress can pass bills that override them. Those processes do take time, however, whereas the order can be effective immediately.

Executive orders have increased in power over the years, making them a greater tool in the hands of successive presidents, which may be seen as opposed to the spirit of the framers and the Constitution.

But would a progressive or originalist president ever consider disempowering these orders?

"Well," Casey says, "the incentive is never for the president to do that. It would up to it would be up to Congress to try to limit lawmaking through executive order or perhaps the courts. Although the courts, as currently constituted, I don't know that they're going to move in that direction."

"Whoever whoever has the presidency, they and their their party want the president to be able to take actions to go around Congress. And I'm not sure that we should all want that to be happening because Congress is the more representative body of the public. But but the incentive, particularly if the other party controls Congress, that that's going to be something that that the president is going to be sorely tempted to to do and use."

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Hannah McCarthy first came to NHPR an intern in 2015, returned as a Fellow the following year and then bounced around as a reporter and producer before landing as co-host of Civics 101. She has reported on everything from the opioid epidemic to State House politics to haunted woods of New Hampshire.

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