Executive Order Explorer

The Office of the Federal Register describes executive orders as official documents, numbered consecutively, through which the president manages the operations of the federal government. National Archives

The Constitution Annotated says presidential orders based on a statute that gives the president power, or on the president’s own constitutional powers, have the force of law, as long as they don’t go beyond the Supreme Court’s reading of that statute or of the Constitution. Constitution Annotated

This explains how executive orders work in general, not any particular order. It isn’t legal advice.

Statements of court doctrine here follow the Constitution Annotated (2022 edition, published by the Government Publishing Office). This explainer doesn’t describe any recent order or how courts have ruled on one.

Where an Executive Order’s Authority Comes From

• Article II of the Constitution says, “The executive Power shall be vested in a President of the United States of America.” U.S. Constitution
• Article II also says the president “shall take Care that the Laws be faithfully executed.” U.S. Constitution
• Article I vests “All legislative Powers herein granted” in Congress. U.S. Constitution
• The Constitution Annotated says presidential orders based on a statute that gives the president power, or on the president’s own constitutional powers, have the force of law, as long as they don’t go beyond the Supreme Court’s reading of that statute or of the Constitution. Constitution Annotated
• Every executive order and proclamation must have a suitable title and must cite the authority under which it is issued. 1 CFR 19.1(a), (b)

The Youngstown Framework

• Justice Robert Jackson’s concurring opinion set out a framework that the Supreme Court has since adopted to assess claims of presidential power. It sorts presidential actions into three categories by how they line up with Congress. Constitution Annotated
• Acting with Congress: when the president acts under an express or implied authorization of Congress, the president’s authority “is at its maximum.” Constitution Annotated
• When Congress is silent: if Congress has neither granted nor denied authority, the president can rely only on the president’s own independent powers. But there is also a “zone of twilight” where the president and Congress may share authority or where it is unclear who has it. Constitution Annotated
• Acting against Congress: when the president takes measures incompatible with the express or implied will of Congress, the president’s power “is at its lowest ebb,” resting only on the president’s own constitutional powers minus any constitutional powers of Congress over the matter. Constitution Annotated
• Since Youngstown, the Supreme Court has used Justice Jackson’s framework when assessing assertions of presidential power. Constitution Annotated
• Youngstown Sheet & Tube Co. v. Sawyer concerned an executive order President Harry S. Truman issued on April 8, 1952, directing the commerce secretary to seize and run the nation’s steel industry to avert a nationwide strike. Constitution Annotated
• The steel companies sued, a federal district court blocked the seizure with an injunction, and the Supreme Court took the case before the appeals court ruled. Constitution Annotated
• By a 6-3 vote, the court held the seizure unconstitutional. Justice Hugo Black’s controlling opinion found no statute that authorized it and reasoned that the president had tried to exercise a lawmaking power, which the Constitution gives only to Congress. Constitution Annotated

How an Order Is Issued and Published

1. A proposed executive order or proclamation goes first to the director of the Office of Management and Budget. A letter from the agency proposing it goes along and explains its nature, purpose, background and effect, and how it relates to existing laws and orders. U.S. Code
2. If the budget director approves it, the draft goes to the attorney general, who considers “both form and legality.” U.S. Code
3. A draft that the budget director or the attorney general disapproves can’t be presented to the president unless a statement of the reasons for the disapproval goes with it. U.S. Code
4. Once the president signs it, the original and two copies go to the director of the Office of the Federal Register for publication in the Federal Register. U.S. Code

• After the president signs an executive order, the Office of the Federal Register assigns it a number, and it is published in the Federal Register and compiled in Title 3 of the Code of Federal Regulations. National Archives
• The text of each executive order appears in the daily Federal Register as it is signed by the president and received by the Office of the Federal Register. National Archives
• Federal law requires presidential proclamations and executive orders to be published in the Federal Register, except those without general applicability and legal effect and those effective only against federal agencies or their officers, agents or employees acting in that role. U.S. Code
• Any document or order that prescribes a penalty counts as having general applicability and legal effect, so it falls under that publication requirement. U.S. Code
• Other documents must also be published when the president determines they have general applicability and legal effect. U.S. Code
• Until a document that must be published has been filed with the Office of the Federal Register and made available for public inspection, it isn’t valid against a person without actual knowledge of it. U.S. Code
• Publication in the Federal Register creates a rebuttable presumption that the document was duly issued and that the published copy is a true copy of the original. U.S. Code
• Trade proclamations under the Trade Act of 1974 or other trade laws follow a different route: the U.S. trade representative prepares them and sends them to the attorney general for form and legality. The budget office step doesn’t apply. U.S. Code
• Proposed proclamations for special days or events must reach the budget director, or an office the director designates, at least 60 days before the observance. U.S. Code

What Can Stop or Change an Executive Order

A later order

• Executive Order 11030, signed June 19, 1962, shows one order replacing another: it says that on publication in the Federal Register it “shall supersede” Executive Order 10006 of Oct. 9, 1948. U.S. Code
• Later executive orders have amended Executive Order 11030 itself, beginning with Executive Order 11354 of May 23, 1967. U.S. Code
• The National Archives’ executive order disposition tables, which cover orders from Jan. 8, 1937, through Jan. 19, 2017, give each order’s detailed history of amendments and revocations. The Archives points readers to FederalRegister.gov for executive order disposition tables. National Archives
• The Office of the Federal Register says every entry in its executive order disposition tables is subject to change, because new executive orders, proclamations, other presidential documents, regulations, notices and public laws often amend or otherwise affect those entries. National Archives
• The Office of the Federal Register adds that the tables are informational listings, not definitive legal authority. National Archives

Congress and the veto

• Acting against Congress: when the president takes measures incompatible with the express or implied will of Congress, the president’s power “is at its lowest ebb,” resting only on the president’s own constitutional powers minus any constitutional powers of Congress over the matter. Constitution Annotated
• Justice Black reasoned that Congress could have directed the president to seize the steel mills, but the president could not seize them without congressional authorization. Constitution Annotated
• President Truman reported the seizure to Congress and conceded Congress’s power to supersede the order, which Congress did not do. Constitution Annotated
• In an early case, a U.S. commander captured a ship under a president’s instructions, but Congress had authorized seizing only ships bound to French ports. The Supreme Court held that the instructions exceeded the authority Congress granted and “were not to be given the force of law.” Constitution Annotated
• A bill that passes both the House and the Senate goes to the president before it becomes law. If the president approves, the president signs it; if not, the president returns it with objections, which is a veto. U.S. Constitution
• A vetoed bill still becomes law if two-thirds of each chamber votes to pass it. U.S. Constitution
• A bill the president doesn’t return within 10 days, Sundays excepted, becomes law as if signed, unless Congress’s adjournment prevents its return. U.S. Constitution

The courts

• To bring a case in federal court, a person generally must show a concrete and particularized injury that is traceable to the challenged action and that a favorable decision can redress. This is called standing. Constitution Annotated
• Since Youngstown, the Supreme Court has used Justice Jackson’s framework when assessing assertions of presidential power. Constitution Annotated

Courts and the president’s official duties

• In Mississippi v. Johnson (1867), the Supreme Court said it had “no jurisdiction . . . to enjoin the President in the performance of his official duties.” Later decisions made clear that the case doesn’t mean the president is immune from judicial process. Constitution Annotated
• For example, in United States v. Nixon, the court held that President Richard Nixon was subject to a subpoena to produce evidence for use in a federal criminal case. Constitution Annotated
• A federal appeals court held in 1974 that it could order the president to perform a ministerial act but said that if any other officer were available to receive such an order, it should go to that officer instead. Constitution Annotated

Funding

• The Constitution says, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Constitution
• As the Supreme Court has explained, no money can be paid out of the Treasury unless Congress has appropriated it by law. Constitution Annotated
• The Supreme Court’s cases say any exercise of a power the Constitution gives the executive branch is “limited by a valid reservation of congressional control over funds in the Treasury.” Constitution Annotated
• Congress can’t make funds available subject to a limit that is itself unconstitutional. The court has disregarded a funding limit that amounted to a bill of attainder. Constitution Annotated

Executive Orders, Proclamations and Memoranda

• Executive orders are signed documents, numbered consecutively, through which the president manages the operations of the federal government. National Archives
• Proclamations are signed documents, numbered consecutively, through which the president communicates information on holidays, commemorations, special observances and trade. National Archives
• Administrative orders are unnumbered signed documents through which the president conducts the administrative operations of the federal government. They include memoranda, notices, determinations, letters and messages, among others. National Archives
• Executive orders, proclamations and certain administrative orders appear in the Federal Register. All three types, including every administrative order, are published in the Compilation of Presidential Documents. National Archives
• Executive orders and proclamations are codified in Title 3 of the Code of Federal Regulations. National Archives

Related GovFacts Articles

• How Executive Orders Work: Power, Limits, and Controversies
• Executive Orders vs. Laws: What’s the Difference?
• How Executive Orders Work—And When Courts Can Strike Them Down
• Why FDR Issued More Executive Orders Than Any Modern President