I posted a video to YouTube yesterday which looked at the executive actions announced by President Obama on Monday, January 4, regarding gun control. In doing research for that video, I learned that there are two different types of this kind of power that Presidents use: executive actions and executive orders. These terms are not interchangeable, as I learned, and have differing amounts of legal power attached to them.
An executive action is essentially any sort of action taken by the President. The President is given executive power in Article II, Section 1 of the Constitution, and is instructed to “take Care that the Laws be faithfully executed” in Article II, Section 3. While executive actions are not explicitly mentioned in the Constitution, it is not a stretch to understand that an executive action could be thought of as an action taken by the President in order to enforce the laws of the United States. This does not mean that executive actions have only been used in this way, as some actions have at times functioned as laws or interpreted laws in a new way. This is problematic because the President does not have Constitutional power to create or interpret laws; those tasks are given to Congress and the Courts, respectively. None of this means that executive actions are unconstitutional in and of themselves, but rather that some scrutiny of executive actions is acceptable when looking to see if any individual action is acceptable or not.
It seems that oftentimes executive actions could be thought of as Presidential wish-lists. Executive actions are not legally binding, carry no specific legal weight, and do not set policy. In the case of President Obama’s executive actions on gun control we see that 3 of his four points will be directives for items that he asks Congress to do since he doesn’t have the power to do these things on his own.
Executive orders are a bit different. Executive orders are legally binding and do set policy. Each order is registered and given a number by the Federal Register, and lists of executive orders can be found on their website. Numbering of these orders began in 1907, beginning with retroactive numbering with an order given by President Lincoln in 1862. Executive orders are typically given so that different departments and agencies within the executive branch can manage operations within the federal government. The key distinction to remember here is that executive actions are not legally binding and do not create policy while executive orders are legally binding and have the power of law behind them.
Executive orders have a lengthy history behind the, stretching back to the presidency of George Washington. Some executive orders have been considered very beneficial and have played important roles in the history of our country. Perhaps the most distinct case of this is the Emancipation Proclamation, the order which directed that all southern slaves would be freed as of January 1, 1863. Executive orders have also had negative consequences and served as dark pieces of the country’s history. The order to intern Japanese-Americans and German-Americans during WWII was an executive order issued by Franklin D. Roosevelt. Executive orders have varied in importance and severity on the spectrum between these two examples.
All executive orders and actions can be subject to judicial review, and can be nullified by being struck down in court, by the passage of a law, or by an executive action or order of another President. Additionally, while my research was somewhat murky, it seems that possibly all Presidents have issued executive actions while all but one have issued executive orders (the lone President who didn’t is listed as William Henry Harrison, who died one month into his Presidency)*. The government system of checks and balances in the United States allows for inappropriate uses of power to be removed from the system, and since the first President the system has allowed executive actions and order to take place while challenging and removing ones that overstepped their bounds.
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