Executive Orders

July 26, 2017 6:40 PM

Are there any limits on executive orders? How do they work, and what are they normally used for?

Given Drumpf's fondness for executive orders, I've been wondering a few things about them, and find the concept a bit confusing.

Do executive orders go through anyone besides the president or any sort of regulatory process, do they have limits on what they can do, and do they have any checks in place to prevent the president from abusing them?

Is it standard policy for a president to use EOs to erase things the previous president passed as Trump is doing for Obama, or is it another thing that was technically possible but no one before Trump exploited as much? What is their usual purpose?

posted by thedarksideofprocyon to Law & Government (5 answers total)

Best answer: Congress makes laws. The President is charged with taking care that the laws are faithfully executed. Executive Orders are basically letters to the rest of the executive branch saying how the current administration intends to execute the laws.

There is usually a batch of executive orders that reverse more politically-notable executive orders from when the previous party was in office.

Executive orders are instruments of policy, not law. They are constrained by the laws they are supposed to be implementing. And they've been around for a long time.
posted by Huffy Puffy at 7:25 PM on July 26, 2017 [2 favorites]

Part of the problem is that the laws that congress passes are vague. For example, there is no law requiring that businesses install wheelchair ramps. The ADA simply requires that there be "reasonable accommodation" for disabled people, which has been interpreted by the courts and by the executive branch as requiring, among other things, wheelchair ramps.

The executive's job is to look at the laws passed by congress and make decisions about how exactly they'll be enforced. Those decisions are called "Executive Orders".

No congress can bind another, and no executive can bind another. To the extent that rules like transsexuals in the military, children under 18 not being deported, or cars having to get certain gas mileage are creations of the president, those rules can be uncreated by the president.

If congress had passed an actual law requiring those things, the executive would be (theoretically) powerless to prevent them. But congress isn't really in the law-making business, they go more for platitudes.
posted by Hatashran at 8:13 PM on July 26, 2017 [1 favorite]

In reference to limits, from Wikipedia's Internment of Japanese Americans article:

Executive Order 9066, signed by Franklin D. Roosevelt on February 19, 1942, authorized military commanders to designate "military areas" at their discretion, "from which any or all persons may be excluded." These "exclusion zones," unlike the "alien enemy" roundups, were applicable to anyone that an authorized military commander might choose, whether citizen or non-citizen. Eventually such zones would include parts of both the East and West Coasts, totaling about 1/3 of the country by area. Unlike the subsequent deportation and incarceration programs that would come to be applied to large numbers of Japanese Americans, detentions and restrictions directly under this Individual Exclusion Program were placed primarily on individuals of German or Italian ancestry, including American citizens.

• March 2, 1942: Lieutenant General John L. DeWitt issued Public Proclamation No. 1, declaring that "such person or classes of persons as the situation may require" would, at some later point, be subject to exclusion orders from "Military Area No. 1" (essentially, the entire Pacific coast to about 100 miles (160.9 km) inland), and requiring anyone who had "enemy" ancestry to file a Change of Residence Notice if they planned to move. A second exclusion zone was designated several months later, which included the areas chosen by most of the Japanese Americans who had managed to leave the first zone.
• March 11, 1942: Executive Order 9095 created the Office of the Alien Property Custodian, and gave it discretionary, plenary authority over all alien property interests. Many assets were frozen, creating immediate financial difficulty for the affected aliens, preventing most from moving out of the exclusion zones.
• March 24, 1942: Public Proclamation No. 3 declares an 8:00 pm to 6:00 am curfew for "all enemy aliens and all persons of Japanese ancestry" within the military areas.

Obviously not typical orders but this event was publicly cited by Trump and his surrogates during the campaign; so amazingly, after years of screaming about how Obama was engaged in tyrannical executive overreach by doing things like using EOs to reshuffle prosecution priorities for government attorneys, the political right installed into power someone who was citing wartime executive orders to justify peacetime bans on religion and rounding up millions of people.

Also, btw, as far as numbers Obama issued a total of around 800 EOs, whereas FDR issued more than 3000. (Albeit over 3 terms.)
posted by XMLicious at 3:10 AM on July 27, 2017

The Wikipedia article List of United States federal executive orders is instructive, and shows that Obama issued fewer XOs per year than any president since Grover Cleveland's first term, and that Trump has (already!) issued more than the yearly average of any president since Truman. The all-time winner was FDR, with an average of 307.8 XOs per year (more than 3700 over his entire Presidency!). At current rate and speed, Trump seems unlikely to catch up.
posted by ubiquity at 9:01 AM on July 27, 2017 [2 favorites]

Wow, well, I seem to have gotten that approximation of Obama's total number of orders way off—276 is what the Wikipedia page lists. I had been poking around the National Archives site a couple of months ago and clearly misread or misremembered the number. My apologies, I should have checked to make sure.
posted by XMLicious at 4:21 PM on July 27, 2017