President Biden has been on a tear these past two weeks, daily signing executive orders to a running total of twenty-five. What are these things, and what do they mean? As the name implies, an Executive Order (or Executive Action, the name sometimes changes) is just an order issued by the President as Chief Executive. It has the force of law within the Executive branch, meaning when I worked for the federal government, I could have been fired, fined, or jailed for violating one. But it is not a law, which requires the passage of Congress and signature of the President (as Bill from Schoolhouse Rock taught us):
Executive orders go right back to President Washington, and recent Presidents aren’t even in top ten when it comes to numbers: Teddy Roosevelt cranked out over one thousand, as did Woodrow Wilson and Calvin Coolidge; FDR spouted over three thousand, and set the record for average per year, too! Recent Presidents (starting with Clinton) started returning to executive orders as it became increasingly impossible to get any agreement on new laws in the Congress. Like a law, an executive order can be reviewed by the courts and deemed illegal or unconstitutional. When an executive order conflicts with a law, the law wins. Finally, an executive order can be rescinded by the President or his successor at will.
Some of the best and worst policies in US history came about as executive orders. FDR used EOs for many of his New Deal policies, but he also imprisoned Japanese Americans with one. Lincoln’s Emancipation Proclamation was an executive order, but so was his policy to deny habeas corpus in Maryland. Truman desegregated the US military with one, but he tried–and failed–to seize the nation’s steel mills with one, too! Woodrow Wilson found time to issue an executive order covering the use of torches for hunting in the Panama Canal Zone, and Herbert Hoover went all meta by issuing an executive order on the issuance of (wait for it) executive orders.
So are these EOs, as they’re called, important? Maybe, maybe not. Consider some examples. The President can use an EO to adjust how the federal government enforces a law. Take immigration. According to law, people inside the United States illegally are to be deported after due process. Each President can issue an EO indicating what emphasis should be placed on which groups: for example, President Obama directed (via EO) deportation be focused on violent criminals, in effect (since there are only so many immigration officers and courts) allowing many people eligible for deportation to stay in the United States. This was a very significant executive order, with very real effects on average people.
Executive orders can also be symbolic. President Trump’s “Muslim ban” (a pejorative I’ll use just as shorthand) was an Executive Order reviewed by the Supreme Court and found constitutional, primarily because the actual EO highlighted the fact that all the countries included either failed to provide–or did not have–data on their citizens for the US to consider for visa purposes. President Biden faced a dilemma: if he simply rescinded it, he would be permitting visa applications which could not be verified. So his new EO rescinds the broad policy put forward by President Trump, but retains a review of its information sharing requirements, which will likely have the same effect. Visa applicants from the countries previously banned are still going to have to provide positive proof they are not suspect in any way–a thing very hard to do.
Executive orders may cause more confusion than execution. President Biden rescinded all of President Trump’s immigration-related EOs. Except no immigration is currently permitted due to the pandemic, so no one can come anyway. But his administration telegraphed the changes before the inauguration, so now thousands of asylum-seekers are headed to the border. That, and Mexico is not very happy with the new administration, so they changed their laws (partially) to prevent the US from returning non-Mexican families across the border. So now the CDC says no one can cross, the Mexican government says no one can cross back, and the border patrol has been told what not to do (family separations). Result: migrants are walking across the border and being quarantined then released in the United States to await further processing in already overwhelmed immigration courts. Tricky business, what?
At times it is unclear what effect an EO will have. President Biden enacted a mask wearing requirement for all forms of public transportation. So if you take a bus or train, or go an airport, you too have to wear a mask. Of course, most of these locations already had a Departmental, Agency, or local requirement for masks. But now the EO means that if a federal employee (say, a National Park Service Ranger) lets you go maskless, they can be fired. And that bus driver (not a federal employee) must not let you board without a mask. Do they refuse to move the bus? Call police? Throw you off? All this remains to be worked out. I trust most people will just wear masks, but there have been several incidents on airplanes, so who knows?
It is a shame that there is so little bipartisanship in Washington that Congress can’t pass laws, so Presidents rely on possibly ephemeral executive orders. It is worse in my opinion that the media does such a poor job of explaining what the orders do or don’t do, instead characterizing them by numbers or failing to note the complexities altogether. This has and will only lead to more public distrust, when the policy outcomes don’t match the rhetoric. President Trump had a number of executive orders on “buying American” and now President Biden has one, too. Did any smart media source point out that United States treaties have the force of US law, so commitments made therein trump these orders? Did you know that any federal procurement over $182,000 USD (a paltry sum to the federal government) must be open to bids from twenty US allies under the Government Procurement Act? But it sounds good, no?
Executive orders appear to be a policy option which will be around for the near future. They can sound grand and be meaningless, or sound harmless and be far-reaching. They are simply a tool, and with all tools, over-reliance is a problem. As we used to say in the Army, if your only tool is an M1A1 tank, every problem looks like a target.
Nice summary Pat. You mentioned the power of the Supreme Court to declare an Executive Order unconstitutional. That is the greatest power resident in the Judicial Branch. That power is called “judicial review,” should you have a high school AP test scheduled. Executive Orders, as well as Executive Agreements (treaties without Senate approval), are implemented with a stroke of a pen and terminated just as easy. Presidents have signed over 14,000 Executive Orders. Although Executive Orders are limited to Executive Branch employees, contractors, and Federal property–just think about how broad of a swath that is in our society.
Great read. thanks.