EXECUTIVE ORDERS: ISSUANCE AND REVOCATION
CRS Report for Congress
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Executive Orders: Issuance and Revocation
American Law Division
Executive orders and proclamations are used extensively by Presidents to achieve
policy goals, set uniform standards for managing the Executive Branch, or outline a
policy view intended to influence the behavior of private citizens. The Constitution does
not define these presidential instruments, and does not explicitly vest the President with
the authority to issue them. Nonetheless, such orders are accepted as an inherent aspect
of presidential power, and, if based on appropriate authority, they have the force and
effect of law. This report discusses the nature of executive orders and proclamations,
with a focus on the scope of presidential authority to execute such instruments and
judicial and congressional responses thereto.
Definition and Authority
The Constitution does not contain any provisions that define executive orders or
proclamations. The most widely accepted description appears to be that of the House
Government Operations Committee in 1957: “Executive orders and proclamations 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.... In the narrower sense Executive orders and proclamations are written documents
denominated as such.... Executive orders are generally directed to, and govern actions by,
Government officials and agencies. They usually affect private individuals only indirectly.
Proclamations in most instances affect primarily the activities of private individuals. Since
the President has no power or authority over individual citizens and their rights except
where he is granted such power and authority by a provision in the Constitution or by
statute, the President’s proclamations are not legally binding and are at best hortatory
unless based on such grants of authority. The difference between Executive orders and1
proclamations is more one of form than of substance....
1 Staff of House Comm. On Government Operations, 85th Cong., 1st Sess., Executive Orders and
Proclamations: A Study of a Use of Presidential Powers (Comm. Print 1957) (hereinafter “Orders
Congressional Research Service The Library of Congress
In addition to executive orders and proclamations, Presidents often issue “presidential
memoranda.” The distinction of these instruments from executive orders and
proclamations is likewise more a matter of form than of substance. Specifically, all three
instruments can be employed to direct and govern the actions of Government officials and
agencies. Further, if issued under a valid claim of authority and published, all three may
have the force and effect of law, requiring courts to take judicial notice of their existence.2
Indeed, it would appear that the only technical difference between executive orders and
proclamations in relation to presidential memoranda is that the former must be published
in the Federal Register, while the latter are published only when the President determines
that they have “general applicability and legal effect.”3
Just as there is no definition of executive orders and proclamations in the
Constitution, there is, likewise, no specific provision authorizing their issuance. As such,
authority for the execution and implementation of executive orders stems from implied
constitutional and statutory authority. In the constitutional context, presidential power to
issue such orders has been derived from Article II, which states that “the executive power
shall be vested in a President of the United States,” that “the President shall be
Commander in Chief of the Army and Navy of the United States,” and that the President
“shall take care that the laws be faithfully executed.”4 The President’s power to issue
executive orders and proclamations may also derive from express or implied statutory
authority.5 Irrespective of the implied nature of the authority to issue executive orders and
proclamations, these instruments have been employed by every President since the
inception of the Republic.
Despite the amorphous nature of the authority to issue executive orders, Presidents
have not hesitated to wield this power over a wide range of often controversial subjects.6
This broad usage of executive orders to effectuate policy goals has led some commentators
to complain that many such orders constitute executive lawmaking that impacts the
interests of private citizens and encroaches upon congressional power.7 The controversial
nature of many presidential directives thus raises questions regarding whether and how
executive orders may be amended or revoked.
2 Armstrong v. United States, 80 U.S. 154 (1871); see also, Farkas v. Texas Instrument, Inc., 372
F.2d 629 (5th Cir. 1967); Farmer v. Philadelphia Electric Co., 329 F.2d 3 (3rd Cir. 1964); Jenkins
v. Collard, 145 U.S. 546, 560-61 (1893).
3 44 U.S.C. §1505. The Federal Register Act requires that executive orders and proclamations be
published in the Federal Register. Id. Furthermore, executive orders must comply with preparation,
presentation and publication requirements established by an executive order issued by President
Kennedy. See Exec. Order No. 11030, 27 Fed. Reg. 5847 (1962).
4 U.S. Const., Art. II, §1, 2, & 3. See Orders and Proclamations, supra n. 1, at 6-12.
5 See Youngstown Sheet and Tube Co. v. Sawyer 343 U.S. 579 (1952).
6 See Louis Fisher, Executive Orders and Proclamations, 1933-99: Controversies with Congress
and in the Courts, Congressional Research Service Report No. RL30264 (July 23, 1999).
7 See William J. Olson and Alan Woll, Policy Analysis, Executive Orders and National
Emergencies: How Presidents Have Come to “Run the Country” by Usurping Legislative Power,
Cato Institute, Oct. 28, 1999.
Judicially Enforced Limitations
The proper framework for analyzing executive orders in the judicial context may be
found in Youngstown Sheet & Tube Co. v. Sawyer.8 There, the Supreme Court dealt with
President Truman’s executive order directing the seizure of steel mills, which was issued
in an effort to avert the effects of a workers' strike during the Korean War. Invalidating
this action, the majority held that under the Constitution, “the President’s power to see
that laws are faithfully executed refutes the idea that he is to be a lawmaker.”9 Specifically,
Justice Black maintained that Presidential authority to issue such an executive order “must
stem either from an act of Congress or from the Constitution itself.”10 Applying this
reasoning, Justice Black's opinion for the Court determined that as no statute or
Constitutional provision authorized such presidential action, the seizure order was in
essence a legislative act. The Court further noted that Congress had rejected seizure as a
means to settle labor disputes during consideration of the Taft-Hartley Act. Given this
characterization, the Court deemed the executive order to be an unconstitutional violation
of the separation of powers doctrine, explaining “the founders of this Nation entrusted the
lawmaking power to the Congress alone in both good and bad times.”11
While Justice Black’s majority opinion in Youngstown seems to refute the notion that
the President possesses implied constitutional powers, it is important to note that there
were five concurrences in the case, four of which maintained that implied presidential
authority adheres in certain contexts.12 Of these concurrences, Justice Jackson’s has
proven to be the most influential, even surpassing the impact of Justice Black’s majority
opinion. Specifically, Jackson established a tri-partite scheme for analyzing the validity of
presidential actions in relation to constitutional and congressional authority.13
Jackson’s first category focuses on whether the President has acted according to an
express or implied grant of congressional authority. If so, according to Jackson,
presidential “authority is at its maximum, for it includes all that he possesses in his own
right plus all that Congress can delegate,” and such action is “supported by the strongest14
of presumptions and the widest latitude of judicial interpretation.” Secondly, Justice
Jackson maintained that, in situations where Congress has neither granted or denied
authority to the President, the President acts in reliance only “upon his own independent
powers, but there is a zone of twilight in which he and Congress may have concurrent15
authority, or in which its distribution is uncertain.” In the third and final category, Justice
Jackson stated that in instances where presidential action is “incompatible with the express
8 343 U.S. 579 (1952).
9 Id. at 587.
10 Id. at 585.
11 Id. at 586-589.
12 Id. at 659 (Burton, J., concurring); Id. at 661 (Clark, J., concurring in result only); Id. at 610
(Frankfurter, J., concurring); Id. at 635 (Jackson, J., concurring).
13 Id. at 635-638.
14 Id. at 635, 637.
15 Id. at 637.
or implied will of Congress,” the power of the President is at its minimum, and any such
action may be supported pursuant only the President’s “own constitutional powers minus
any constitutional powers of Congress over the matter.”16 In such a circumstance,
presidential action must rest upon an exclusive power, and the Courts can uphold the
measure “only by disabling the Congress from acting upon the subject.”17
Applying this scheme to the case at hand, Justice Jackson determined that analysis
under the first category was inappropriate, due to the fact that President Truman’s seizure
of the steel mills had not been authorized by Congress, either implicitly or explicitly.
Justice Jackson also determined that the second category was “clearly eliminated,” in that
Congress had addressed the issue of seizure, through statutory policies conflicting with the18
President’s actions. Employing the third category, Justice Jackson noted that President
Truman’s actions could only be sustained by determining that the seizure was “within his
domain and beyond control by Congress.”19 Justice Jackson established that such matters
were not outside the scope of congressional power, reinforcing his declaration that
permitting the President to exercise such “conclusive and preclusive” power would
endanger “the equilibrium established by our constitutional system.”20
These standards remain applicable in the modern era. In 1996, the United States
Court of Appeals for the District of Columbia invalidated an executive order issued by
President Clinton on the grounds that it conflicted with the National Labor Relations Act
(NLRA).21 The order at issue prohibited federal agencies from contracting with employers
that permanently replaced striking employees. Upon determining that the order conflicted
with a provision of the NLRA guaranteeing the right to hire permanent replacements
during strikes, the court of appeals held that the statute preempted the executive order,
stripping it of any effect.22
Further, as long as it is not constitutionally based, Congress may repeal a presidential
order, or terminate the underlying authority upon which the action is predicated. The most
recent example of the express nullification of an executive order by Congress appears to
have involved Executive Order 12806.23 There, Congress revoked an order by President
George H.W. Bush to the Secretary of the Department of Health and Human service to
establish a human fetal tissue bank for research purposes. To effectuate this repeal,
Congress simply directed that the “the provisions of Executive Order 12806 shall not have
16 Id. at 637.
17 Id. at 637-638.
18 Id. at 638-639.
19 Id. at 640.
20 Id. at 638, 640-645.
21 Chamber of Commerce v. Reich, 74 F.3d 1322 (1996).
22 Id. at 1339.
23 3 C.F.R., 1992 Comp., p. 302 (March 19, 1992).
any legal effect.”24 While this seems to be the most recent such action by Congress, there
have been numerous similarly revoked executive orders.25
Illustrating the fact that executive orders are used to further an administration’s policy
goals, there are frequent examples of situations in which a sitting President has revoked
or amended orders issued by his predecessor. This practice is particularly apparent where
Presidents have used these instruments to assert control over and influence the agency
rulemaking process. President Ford, for instance, issued Executive Order 11821, requiring26
agencies to issue inflation impact statements for proposed regulations. President Carter
altered this practice with Executive Order 12044, requiring agencies to consider the
potential economic impact of certain rules and identify potential alternatives.27
Shortly after taking office President Reagan revoked President Carter’s order,
implementing a scheme asserting much more extensive control over the rulemaking
process. Executive Order 12291 directed agencies to implement rules only if “the potential
benefits to society for the regulation outweigh the potential costs to society,” requiring
agencies to prepare a cost-benefit analysis for any proposed rule that could have a
significant economic impact.28 This order was criticized by some as a violation of the
separation of powers doctrine, on the grounds that it imbued the President with the power
to essentially control rulemaking authority that had been committed to a particular agency29
by Congress. Despite these concerns, there were no court rulings assessing the validity
of President Reagan’s order. In turn, President Clinton issued Executive Order 12866,
modifying the system established during the Reagan Administration.30 While retaining
many of the basic features of President Reagan’s order, E.O. 12866 eased cost-benefit
analysis requirements, and recognized the primary duty of agencies to fulfill the duties
committed to them by Congress.
It remains to be seen whether President George W. Bush will issue an executive order
implementing yet another standard for executive review of agency rulemaking.
Nonetheless, President Bush, like his predecessors, has already evinced a willingness to
24 P.L. 103-43, 107 Stat. 133, §121. Given the highly speculative basis of any asserted
constitutional authority for the President to issue such an order, there appears to be little doubt as
to the legitimacy of this congressional revocation. See Youngstown, 343 U.S. at 635-638.
25 See House Comm. on Rules, SubComm. on Legislative and Budget Process, 106th Cong., 1st
Sess., Hearing on the Impact of Executive Orders on Lawmaking: Executive Lawmaking?, p. 124-
26 3 C.F.R. 926 (1971-75).
27 3. C.F.R. 152 (1978).
28 3 C.F.R. 127, 128 (1981).
29 See, e.g., Rosenberg, Beyond the Limits of Executive Power: Presidential Control of Agency
Rulemaking Under Executive Order 12291, 80 Mich. L. Rev. 193 (1981); Erik D. Olsen, The
Quiet Shift of Power: OMB Supervision of EPA Rulemaking Under Executive Order 12,291, 4 Va.
J. Nat. Res. L. 1 (1984).
30 58 Fed. Reg. 51735 (1993).
use executive instruments to achieve policy goals. Specifically, on February 17, 2001,
President Bush revoked a series of executive orders issued by President Clinton regarding
union dues and labor contracts, significantly altering several requirements pertaining to
First, President Bush issued Executive Order 13201, directing that all government
contracts must include a provision requiring contractors to notify their employees that they
cannot be required to join a union, and that they can object to the use of required union
dues for any purpose other than to support collective bargaining, contract administrations,
or grievance adjustment.31 Executive Order 13203 revoked an order issued by President
Clinton establishing the National Partnership Council and requiring federal agencies to32
form labor-management partnerships. Executive Order 13204 revoked another order
issued by President Clinton that required, with respect to contracts for public buildings,
successive contractors to offer a right of first refusal of employment to employees of the
Perhaps most significantly, President Bush also issued Executive Order 13202,
ordering that any executive agency that awards a construction contract must ensure that
no awarding government authority either prohibit or require project labor agreements with34
a labor organization. This directive has been criticized as an example of the use of
executive orders to achieve policy goals without explicit constitutional or statutory
authority. Specifically, critics assert that this order conflicts with the Supreme Court’s
decision in Building Trades Council v. Associated Builders (Boston Harbor).35 There, the
Supreme Court held that the National Labor Relations Act (NLRA) does not preempt a
state authority, when acting as the owner of a construction project, from enforcing an
otherwise legal prehire construction labor agreement between private parties. Specifically,
the Court explained that if a private purchaser can enter into such an agreement, a public
entity, acting as a purchaser, must be able to do the same. Any other result, according to
the Court, would run contrary to the legislative goals that led Congress to allow such
agreements under the NLRA.36 Given that Executive Order 13202 appears to prohibit a
government authority from requiring a project labor agreement, even when that authority
is acting as the owner of a construction project, it has been argued that a reviewing court
could determine that the order lacks statutory authority, rendering it invalid.
31 66 Fed. Reg. 11221 (2001).
32 66 Fed. Reg. 11227 (2001); See also, Exec. Order No. 12871, 58 Fed. Reg. 52201 (1993).
33 66 Fed. Reg. 11228 (2001); See also, Exec. Order 12933, 59 Fed. Reg. 53559 (1994).
34 66 Fed. Reg. 11225 (2001).
35 113 S.Ct. 1190 (1993).
36 Id. at 1199.