Executive Orders: Issuance and Revocation
the President “shall take Care that the Laws be faithfully executed.”[1] The President’s power to issue executive orders and proclamations may also derive from express or implied statutory authority.[2] Irrespective of the implied nature of the authority to issue executive orders and proclamations, these instruments have been employed by every President since the inception of the Republic.[3]
Despite the amorphous nature of the authority to issue executive orders, Presidents have not hesitated to wield this power over a wide range of often controversial subjects, such as the suspension of the writ of habeas corpus;[4] the establishment of internment camps during World War II;[5] and equality of treatment in the armed services without regard to race, color, religion or national origin.[6] President Obama recently issued an executive order pertaining to the abortion provisions in the new health care law, the Patient Protection and Affordable Care Act.[7] This broad usage of executive orders to effectuate policy goals has led some commentators to suggest that many such orders constitute executive lawmaking that impacts the interests of private citizens and encroaches upon congressional power.[8] The controversial nature of many presidential directives thus raises questions regarding whether and how executive orders may be amended or revoked.
- ↑ U.S. Const., Art. II, § 1, 2, and 3. See Orders and Proclamations, supra note 1, at 6-12.
- ↑ See Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).
- ↑ President George Washington’s order of June 8, 1789, asking the heads of executive departments “to submit ‘a clear connected with their [d]epartments,” is listed as the first executive order in a 1943 publication. The The New Jersey Historical Records Survey, Work Projects Administration, List and Index of Presidential Executive Orders, at 1 (1943). President Washington’s first proclamations concerned A National Thanksgiving and treaties with Indian nations. James D. Richardson, A Compilation of the Messages and Papers of the Presidents, 1789-1897, Vol. I, at 64, 80-81 (1896).
- ↑ See, e.g., Executive Order from President Lincoln to Major-General H.W. Halleck, Commanding in the Department of Missouri (Dec. 1861) in James D. Richardson, A Compilation of the Messages and Papers of the Presidents, 1789-1902, at 99 (Vol. VI)(“General: As an insurrection exists in the United States and is in arms in the State of Missouri, you are hereby authorized and empowered to suspend the writ of habeas corpus within the limits of the military division under your command and to exercise martial law as you find it necessary, in your discretion, to secure the public safety and the authority of the United States.”); see also Ex Parte Milligan, 71 U.S. 2, 115 (1866).
- ↑ Exec. Order No. 9066, 7 Fed. Reg. 1407 (Feb. 25, 1942); see also Korematsu v. United States, 323 U.S. 214 (1944).
- ↑ Exec. Order No. 9981, 13 Fed. Reg. 4313 (July 28, 1948)(“It is hereby declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin.”)
- ↑ Press Release, The White House, Executive Order—Patient Protection and Affordable Care Act’s Consistency with Longstanding Restrictions on the Use of Federal Funds for Abortion (Mar. 24, 2010) http://www.whitehouse.gov/the-press-office/executive-order-patient-protection-and-affordable-care-acts-consistency-with-longst. Past Presidents have issued memoranda on abortion, including statements on the “Mexico City Policy” announced by President Reagan in August 1984, which concerned the Agency for International Development's funding of nongovernmental organizations “that engage in a wide range of activities, including providing advice, counseling, or information regarding abortion, or lobbying a foreign government to legalize or make abortion available.” Memorandum on the Mexico City Policy, Pub. Papers 10 (Jan. 22, 1993); see also Policy Statement of the United States of America at the United Nations International Conference on Population (Second Session) Mexico, D.F., Aug. 6-13, 1984, at 4-5, http://www.populationaction.org/Publications/Reports/Global_Gag_Rule_Restrictions/MexicoCityPolicy1984.pdf; Memorandum of March 28, 2001, Restoration of the Mexico City Policy, 66 Fed. Reg. 17303 (Mar. 29, 2001).
- ↑ See William J. Olson and Alan Woll, Policy Analysis, Executive Orders and National Emergencies: How Presidents Have Come to “Run the Country” by Usurping Legislative Power, Cato Institute (Oct. 28, 1999).
