Executive Orders: Issuance and Revocation
Definition and Authority
The Constitution does not contain any provisions that define executive orders or proclamations. The most widely accepted description appears to be that of the House Government Operations Committee in 1957:
Executive orders and proclamations are directives or actions by the President. When they are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law.... In the narrower sense Executive orders and proclamations are written documents denominated as such.... Executive orders are generally directed to, and govern actions by, Government officials and agencies. They usually affect private individuals only indirectly. Proclamations in most instances affect primarily the activities of private individuals. Since the President has no power or authority over individual citizens and their rights except where he is granted such power and authority by a provision in the Constitution or by statute, the President’s proclamations are not legally binding and are at best hortatory unless based on such grants of authority. The difference between Executive orders and proclamations is more one of form than of substance.[1]
In addition to executive orders and proclamations, Presidents often issue “presidential memoranda.” The distinction of these instruments from executive orders and proclamations is likewise more a matter of form than of substance. Specifically, all three instruments can be employed to direct and govern the actions of government officials and agencies.[2] Further, if issued under a valid claim of authority and published, all three may have the force and effect of law, requiring courts to take judicial notice of their existence.[3] Indeed, it would appear that the only technical difference between executive orders and proclamations in relation to presidential memoranda is that the former must be published in the Federal Register, while the latter are published only when the President determines that they have “general applicability and legal effect.”[4]
Just as there is no definition of executive orders and proclamations in the Constitution, there is, likewise, no specific provision authorizing their issuance. As such, authority for the execution and implementation of executive orders stems from implied constitutional and statutory authority. In the constitutional context, presidential power to issue such orders has been derived from Article II, which states that “the executive power shall be vested in a President of the United States,” that “the President shall be Commander in Chief of the Army and Navy of the United States,” and that
- ↑ Staff of House Comm. on Government Operations, 85" Cong., 1ˢᵗ Sess., Executive Orders and Proclamations: A Study of a Use of Presidential Powers (Comm. Print 1957) [hereinafter Orders and Proclamations].
- ↑ For example, the Homeland Security Council (HSC) was first established by § 5 of Executive Order 13228 on October 8, 2001. 66 Fed. Reg. 51812-17 (Oct. 10, 2001). Its location was not specified in that executive order. Its organization and operation were addressed in a Homeland Security Presidential Directive on October 29, 2001, HSPD-1. See http://www.dhs.gov/xabout/laws/gc_1213648320189.shtm#1; CRS Report RS22840, Organizing for Homeland Security: The Homeland Security Council Reconsidered, by Harold C. Relyea, at 2. The HSC was later established within the Executive Office of the President in Title IX of the Homeland Security Act of 2002.
- ↑ Armstrong v. United States, 80 U.S. 154 (1871); see also Farkas v. Texas Instrument, Inc., 372 F.2d 629 (5ᵗʰ Cir. 1967); Farmer v. Philadelphia Electric Co., 329 F.2d 3 (3ʳᵈ Cir. 1964); Jenkins v. Collard, 145 U.S. 546, 560-61 (1893).
- ↑ 44 U.S.C. § 1505. The Federal Register Act requires that executive orders and proclamations be published in the Federal Register. Id. Furthermore, executive orders must comply with preparation, presentation and publication requirements established by an executive order issued by President Kennedy. See Exec. Order No. 11030, 27 Fed. Reg. 5847 (1962).
