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What are Executive Orders and Presidential Proclamations?
What is an Executive Order?
Though Executive Orders aren’t defined in the U.S. Constitution, a 1957 report by the House Government Operations Committee includes a “widely accepted description”1:
“Executive orders… are directives or actions by the President. When they are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law… Executive orders are generally directed to, and govern actions by, Government officials and agencies” (Executive Orders and Proclamations: A Study of a Use of Presidential Powers, p. 1).
For example, “[i]t was by executive order that the armed forces were desegregated in 1948, but executive orders were also used to send Japanese-Americans to internment camps during World War II….” (Principles of Legal Research, p. 196)
What is a Presidential Proclamation?
Presidential Proclamations “are general announcements of policy issued to the nation as a whole… Proclamations are commonly associated with ceremonial occasions such as observance of National School Lunch Week, but some address substantive issues such as trade policy or the size of national monuments” (Principles of Legal Research, p.196-197).
What is the legal effect of such directives? Are they law?
Yes, “[b]oth executive orders and proclamations have the force of law…” according to the American Bar Association. More specifically, to have legal effect, such directives “must be issued pursuant to one of the President’s sources of power.” (Executive Orders: An Introduction, Summary page).
Where is the power to issue Executive Orders derived from? What is the legal authority?
“There are two general sources of authority that may support executive orders: powers granted directly to the President under the Constitution and delegated authorities provided by Congress” (In Focus: Executive Orders and Presidential Transitions, p. 1).
Judicial Review
“Courts sometimes review the legality of executive orders” to determine whether the President may act at all, the scope of Congress’s delegation of power to the President, the scope of the President’s actions in the order, or other Constitutional issues raised by the order (Executive Orders: An Introduction, Summary page).
Depending on the circumstances, the courts may use different types of analysis to make these determinations. For example, the framework established for analyzing whether the President has the power to act in a particular case is “a three-part analysis articulated by Justice Robert Jackson in his concurring opinion to the Supreme Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer” (Summary page).
Where can Executive Orders be found?
Federal Executive Orders can be found in several places online.
- Directives issued by the current administration can be found on the White House press office webpage on Presidential Actions.
- Executive Orders from 1937 forward can be found in the Federal Register, which includes an Executive Order Disposition Table. The table indicates the status of each order, whether amended, revoked, superseded, etc.
- Many older orders can be found through U.C. Santa Barbara’s The American Presidency Project.
- After being published in the Federal Register, executive orders and proclamations are compiled in Title 3 of the Code of Federal Regulations (CFR) annually. Such compilations from 1936 - 1975 can also be found in HeinOnline’s U.S. Presidential Library (available to Jenkins members remotely) collection.
- Jenkins members can also access ProQuest Congressional’s Presidential Materials collection remotely. This comprehensive retrospective includes Executive Orders, Presidential Proclamations, military orders and pardons, policy statements, and other directives, some of which were created before the Federal Register and CFR were first published.
- For information on where to find executive orders on the state (Pennsylvania) and local (Philadelphia) levels, see PaLegalResearch.wordpress.com > Executive Orders.
Further Reading & Research via Remote Member Databases
For further research, West Academic Digital Library (available to members remotely) provides a handful of titles on administrative law and two on legal research.
1 Congressional Research Service report, Executive Orders: Issuance, Modification, and Revocation (p. 1)
