What’s An Executive Order Anyway?

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The president keeps going on TV talking about bypassing congress. “I have a pen and a phone,” is one to the many sound bites we hear on the nightly news. One of the ways presidents make policy is with executive orders. But what are they and where did they come from?

What Is An Executive Order?

An executive order, or proclamation, is written directly from the president independent of the legislative and judicial branches. The president can only give executive orders to federal or state agencies, not to citizens. However, executive orders can sometimes have an indirect effect on citizens.

While every president has used executive orders, there is no specific part of the Constitution that allows them. Presidents get around this by pointing to some implied generic language in Article II of the Constitution.

• "The executive power shall be vested in a President of the United States"
• "The President shall be Commander in Chief of the Army and Navy of the United States"
• "He shall take care that the laws be faithfully executed"

Some Executive Order History

As you might expect, George Washington issued the first executive order in 1793 giving orders for federal officers to prosecute any citizen that interfered with the war between England and France. It was the first of only eight issued by our first president. Why didn’t congress take care of this? They were out of session at the time. Sound familiar?

Abraham Lincoln issued the most controversial presidential executive order of all time. When militia leader John Merryman was jailed for attacking federal troops, his lawyers argued that holding Merryman indefinitely was a violation of habeas corpus.

Using executive order, Lincoln suspended Merryman’s right to habeas corpus. Something Lincoln was not allowed to do during times of rebellion or invasion. After explaining his actions to congress later they passed the Habeas Corpus Act of 1863 actually giving Lincoln the authority after the fact. Lincoln authored 48 executive orders during his presidency.

Most Executive Orders

President Teddy Roosevelt was the first to break the 1,000 executive order mark. He felt he could do anything that wasn’t explicitly prohibited by the Constitution as long as he was actively directing the affairs of the nation in a positive direction.

Franklin D. Roosevelt issued 3,522 executive orders. His first one was to close all banks for four days to get the “New Deal” underway with new banking regulations.

During WWII the president could seize factories, mines, privately owned industrial factories and direct the to making war materials.

After the war Congress began to curtail the powers of the presidency and the use of executive orders.

Some Final Thoughts

The power of a president depends greatly on how much support that president has both in congress and with the people. While FDR seized factories with the blessing of congress during WWII, the Supreme Court stopped Harry Truman from seizing steel companies during Korea.

The president has the most authority when he or she has the blessings of congress.  And, has the least authority when fighting an uphill battle against the wishes of congress and the people.

And a split congress leaves us with the kind of gridlock we are experiencing today. So presidential orders don’t really carry a whole lot of weight without the people’s and congressional blessings.

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