With the Stroke of a Pen: Executive Orders and Presidential Power

By Kenneth R. Mayer | Go to book overview

Two
Executive Orders and the Law

WHAT, PRECISELY an executive order? In the most formal sense, an executive order is a directive issued by the president, “directing the executive branch in the fulfillment of a particular program,” 1 targeted at executive branch personnel and intended to alter their behavior in some way, and published in the Federal Register. Executive orders are instruments by which the president carries out the functions of the office, and every president has issued them (although there was no system for tracking them until the twentieth century). A 1974 Senate study of executive orders noted that “from the time of the birth of the Nation, the day-to-day conduct of Government business has, of necessity, required the issuance of Presidential orders and policy decisions to carry out the provisions of the Constitution that specify that the President ‘shall take care that the laws be faithfully executed.’” 2 The lack of any agreed-upon definition means that, in essence, an executive order is whatever the president chooses to call by that name. 3

Several authors have offered their own definitions and categories, but they tend to be contradictory. Robert Cash describes executive orders as presidential directives and orders “which are directed to, and govern actions of, governmental officials and agencies.” 4 William Neighbors notes that even though the terms “executive order” and “proclamation” are frequently interchanged, executive orders are “used primarily in the executive department, [issued] by the president directing federal government officials or agencies to take some action on specified matters”; 5 in contrast, proclamations are “used primarily in the field of foreign affairs, for ceremonial purposes, and when required … by statute.” Corwin described proclamations as “the social acts of the highest official of government, the best known example being the Thanksgiving Proclamation,” which was first issued by Washington but which has been issued every year since 1863. 6

These distinctions, while accurate on average, are wrong enough of the time to make them less useful for a comprehensive classification. The argument that executive orders are targeted at the behavior of executive branch officials and not the public at large reflects a limited and formalistic perspective of public administration. One could hardly classify in this

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With the Stroke of a Pen: Executive Orders and Presidential Power
Table of contents

Table of contents

  • Title Page *
  • Contents *
  • List of Figures and Tables ix
  • Acknowledgments xi
  • With the Stroke of a Pen *
  • One - Why Are Executive Orders Important? 3
  • Two - Executive Orders and the Law 34
  • Three - Patterns of Use 66
  • Four - Executive Orders and the Institutional Presidency 109
  • Five - Executive Orders and Foreign Affairs 138
  • Six - Executive Orders and Civil Rights 182
  • Seven - Conclusion 218
  • List of Abbreviations 225
  • Notes 227
  • Index 279
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