November 27, 2018

What Is an Executive Order?

One of the most common “presidential” documents in our modern government is an executive order. Every American president has issued at least one, totaling more than (as of this writing) 13,731 since George Washington took office in 1789. Media reports of “changes made by executive order,” or “executive orders to come” rarely explain what the document is, or other technical details, such as why, or how. They seem to be “instant law,” and, at times, steeped in controversy. Here, “Teaching Legal Docs” tries to unpack these sometimes controversial legal documents produced by the executive branch of the U.S. government.

What it is, what it isn’t

An executive order is a signed, written, and published directive from the President of the United States that manages operations of the federal government. They are numbered consecutively, so executive orders may be referenced by their assigned number, or their topic. Other presidential documents are sometimes similar to executive orders in their format, formality, and issue, but have different purposes. Proclamations, which are also signed and numbered consecutively, communicate information on holidays, commemorations, federal observances, and trade. Administrative orders—e.g. memos, notices, letters, messages—are not numbered, but are still signed, and are used to manage administrative matters of the federal government. All three types of presidential documents—executive orders, proclamations, and certain administrative orders—are published in the Federal Register, the daily journal of the federal government that is published to inform the public about federal regulations and actions. They are also catalogued by the National Archives as official documents produced by the federal government. Both executive orders and proclamations have the force of law, much like regulations issued by federal agencies, so they are codified under Title 3 of the Code of Federal Regulations, which is the formal collection of all of the rules and regulations issued by the executive branch and other federal agencies.
Executive orders are not legislation; they require no approval from Congress, and Congress cannot simply overturn them. Congress may pass legislation that might make it difficult, or even impossible, to carry out the order, such as removing funding. Only a sitting U.S. President may overturn an existing executive order by issuing another executive order to that effect.

The Document

The format, substance, and documentation of executive orders has varied across the history of the U.S. Presidency. Today, executive orders follow a format and strict documentation system. Typically, the White House issues the order first, then it is published in the Federal Register, the official journal of the federal government. As a more permanent documentation, orders are also recorded under Title 3 of the U.S. Code of Federal Regulations, which is simply a codification of the permanent rules issued by the executive branch of U.S. government.
Executive orders are numbered. Each order is assigned a number that is unique to the order and consecutive in relation to past executive orders. The Department of State began numbering executive orders in 1907, and even worked backward to assign numbers to all of the orders on file since 1862. In 1936, the Federal Register Act put into place the system that is still in use today. Occasionally, an executive order that predates the numbering system is located, which might result in assigning it a number already in use with a distinguishing letter (e.g. 7709, 7709-A). As a result, there are actually more total executive orders in existence than the most recent number.
There are formatting differences between executive orders released by the White House press office, those printed in the Federal Register, those printed under Title 3, or those found in digital archives as HTML text. Regardless of source, however, all formats will include basic components that are central to the executive order document. Those components are outlined below, and numbered in the nearby example:

  1. Heading. Executive orders are generally labeled as such, include a number, and a date of issue. Historically, however, these features might appear at the end of an order, rather than the beginning, and the number might be handwritten at the bottom of the last page.
  2. Title. Each executive order has a title, which typically indicates what the order concerns.
  3. Introduction. The introduction usually begins with phrasing to the effect of “by the authority vested in me as President by the Constitution and the laws of the United States of America,” and follows with and introduction to what is being ordered. The introduction typically acts to legitimate the order, and may even resemble the beginning of traditional legislation with a “whereas” or a “therefore.” The introduction may be longer or shorter, depending on the complexity of the order, whether it quotes other existing orders or laws, or offers the President’s legal rationale for issuing the order. From the introduction, we can note that the order is written in the first person, from the President to other officials or personnel in the executive branch or federal agencies.
  4. Body of the order. The orders in the executive order are grouped into sections and subsections, each numbered or lettered according to a general outline. The body of the executive order will be longer or shorter, depending on the order contents. Sections spell out the orders, action steps to realize the orders, and other directives, such as study or evaluation, and subsections add additional details, including any relevant definitions. The last section in the order is typically administrative in nature, authorizing publication of the order in the Federal Register, or offering a relevant disclaimer.
  5. Signature. Executive orders are signed by the issuing President. Following the signature is a “White House” notation and date that the order was issued. If there was a date in the heading, the dates in the heading and signature typically match. Executive orders that are pulled from the Federal Register will also include a time and date stamp of when the order was published, and a billing code.

Locating Executive Orders

Presidential executive orders, both historical and contemporary, may generally be found online. Often, orders may be located by the issuing president, date, number, or subject. Historical or online archives might offer the text of an order, or a PDF of the Federal Register entry about the order, or a PDF of the order from the White House. All three presentation formats contain the elements identified earlier, and may serve as valuable primary source texts. A few excellent online repositories of executive orders include:

White House
https://www.whitehouse.gov/briefing-room/presidential-actions/executive-orders

Executive orders from the current presidential administration are available as PDFs from the White House press office.
National Archives and Records Administration
https://www.archives.gov/federal-register/executive-orders/

Archive of all things related to the U.S. government, the National Archives maintains a digital index of executive orders that is searchable by date, number, or topic. Orders may be viewed as PDFs or text, in the Federal Register, or within Title 3 of the U.S. Code.
American Presidency Project
http://www.presidency.ucsb.edu/executive_orders.php

An archive maintained by the University of California Santa Barbara includes text of almost all executive orders, searchable by year of issue back to the early nineteenth century.