Executive Orders Explained

The term “executive order” is commonly used to describe three different types of documents issued by the president: executive orders; presidential memoranda; and presidential proclamations. It is well established that executive orders and presidential memoranda are used to conduct the nation’s business.

There are a few differences between executive orders and presidential memoranda.

  1. There is a numbering system that makes tracking executive orders easier.
  2. Executive orders must be published in the Federal Register.
  3. An executive order must cite the authority relied on by the president to issue the order.
  4. An executive order can only be amended or rescinded by another executive order.
  5. The Office of Management and budget must report on the cost of executive orders.
  6. The cost of a presidential memorandum must only be reported if it’s grater than $100,000,000.

Executive orders and presidential memoranda have the same legal affect. So, I’m going to use “executive order” for the rest of the post.

Executive orders have the same status as do laws passed by Congress and signed by the president. If there is a conflict between an executive order and a state law, the executive order wins. If an executive order conflicts with a federal law, the federal law prevails. Congress can overrule an executive order by passing a law and overriding the president’s veto of that law.

In Youngstown Sheet & Tube Co. v. Sawyer, Justice Jackson’s concurring opinion established the test for the president’s authority when issuing an executive order. When the president is acting under authority granted by Congress, their power is at its highest. If an executive order defies Congress, the president’s power is at its lowest. If an executive order addresses an issue that Congress has been silent about, the president’s authority is in the “twilight zone.”

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