A hallmark of President Joe Biden’s first 100 days in office were 52 executive orders aimed at reversing the previous Administration’s actions and addressing the COVID-19 pandemic. In comparison, Donald Trump had issued 39 executive orders in his first 100 days, while Barack Obama and George W. Bush respectively clocked in at 34 and 13. Given this trend for new Administrations to issue more and more executive orders, it’s no surprise why people are asking just what executive orders are and why they matter.
What Is an Executive Order?
An executive order is an official, legally binding mandate passed down from the President to agencies under the executive branch that gives agencies instructions on how to interpret and carry out federal law. Executive orders are printed and numbered consecutively in the Federal Register, alongside other federal regulatory actions. Additionally, executive orders have the force and effective of law, so as long as the order is based on power vested in the President by the US Constitution or delegated to the President by Congress.
While the Constitution does not contain the term “executive order,” it does provide broad authority for the President to issue executive directives. This authority derives from the “vesting clause” of the Constitution, which grants the President “executive power,” which has come to refer to the administrative actions of running the federal government.
Notably, executive orders are not legislation, and they do not require approval from Congress. However, Congress may pass legislation that might make it difficult, or even impossible, to carry out the order, such as removing funding necessary to implement the order. Congress can also pass legislation to override an executive order, although this legislation would be subject to a presidential veto. Only a sitting US President has the authority to overturn an existing executive order by issuing another executive order.
Important Examples of Executive Orders
Many impactful executive orders have been issued of the years – here are a handful of them:
- Abraham Lincoln suspended the writ of habeas corpus during the Civil War via executive order in 1861. Lincoln cited his authority to issue the executive order under the powers under the Constitution’s Suspension Clause, which states, “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion and invasion the public safety may require it.” Later, Lincoln issued two executive orders that comprised the Emancipation Proclamation, which he justified under wartime powers.
- Franklin Roosevelt established internment camps during World War II via an executive order. He also used an executive order to create the Works Progress Administration.
- Harry Truman signed an executive order in 1948 to end segregation in the armed forces.
- Dwight Eisenhower used an executive order to put the Arkansas National Guard under federal control and to enforce desegregation in Little Rock, Arkansas in 1957.
Biden’s Executive Orders on Health Care to Date
President Biden’s executive orders so far have focused on the COVID-19 pandemic, including creating a response coordinator and requiring masks in airports. Additionally, he established an additional special enrollment period via healthcare.gov, and set up a health equity task force to address the needs of communities of colors and underserved populations.
So, Do Executive Orders Really Matter?
The answer is…it depends. Historically, most executive orders have been for administrative purposes, such as requesting reports or forming task forces. Beyond that, the impact of an executive order is limited to both the power of the President and the law. For instance, President Donald Trump’s executive order to construct a border wall along the US southern border was technically meaningless because only Congress has the power to appropriate funds for border wall construction.
In practice, however, the impact of executive orders can be profound. Even if executive orders do not change federal law, they serve as indicators of how the Executive Branch can be reshaped to carry out federal law in a way that reflects an Administration’s priorities. While the Trump Administration’s executive order on the border wall did not immediately spark new construction on the southern border, it did represent a shift in how the executive branch carries out immigration law that Biden Administration has had a tough time reversing. For instance, many federal agencies began to view legal immigration as something to restrict, contributing to a slowdown in legal immigration and changes personnel policies within relevant agencies.