The terms “executive order” and “executive action” have been getting a lot of use in the last two weeks. But what exactly do these terms mean for us?
Each stems from Article II of the Constitution, which states, “The executive Power shall be vested in a President of the United States of America.” With few exceptions, every U.S. president has utilized this power in one form or another.
The Executive Order
Executive orders do not and cannot replace statutes created by Congress. However, when there is a gap in legislation, the executive order is a tool that presidents can use to ensure clear directives. For example, FDR issued an executive order during WWII that permitted the internment of American citizens of certain nationalities. Eisenhower desegregated public schools with an executive order in 1957. The Peace Corps was created via an executive order by JFK in 1961.
But what exactly is an executive order? The president creates executive orders. Even though they are not legislation, they are legally binding. They provide directions to federal employees by the president, such as federal agencies and department heads. Importantly, executive orders are sent to the Federal Register (the federal government’s official journal), where they are given an identifying number and then published.
Congress cannot “overturn” an executive order. Additionally, executive orders cannot override existing legislation; only where there is no law can a president issue an executive order (remember, they are gap fillers). Yet Congress can pass legislation that makes the executive order moot or even impossible to carry out (think removing funding). However, the only power available to overturn an existing executive order is another executive order, either by that same president or any following president.
The Executive Action, AKA Memorandums
This is a direction the president gives to inform what the executive branch does and how. It has very little, if any, legal weight. Think of the executive action as a list of policies the president hopes to implement in the future. In the case of executive action, Congress can pass legislation that could stall it (think passing legislation that limits an agency’s authority). Here, the action or memoranda is not required to be published.
Thus, executive orders carry much more weight and authority than executive actions. However, they are both important tools for all presidents, tools that allow them to communicate and implement their desired outcomes while in office.