CRS Report for Congress

L. Elaine Halchin
Analyst in American National Government
Government and Finance Division
November, 2000

Overview of Executive Orders

Unilateral action by the President, in the form of executive orders, dates back to the administration of George Washington. 1 On October 3, 1789, he designated Thursday, November 26, " a day of public thanksgiving." 2 The numbering of executive orders, which was started by the Department of State, began in 1907. The first executive order, designated as such, retroactively, by the Department of State, was an order signed by President Abraham Lincoln on October 20, 1862. Since then, over 13,000 executive orders have been issued; and, unless revoked or voided by presidential, judicial or legislative action, executive orders have the force and effect of law. 3

Executive Order 11030, as amended, details the procedure for preparing, filing, and publishing executive orders (and proclamations). Preparation by the originating federal agency includes citing authority - constitutional, 4 statutory, or both - under which the order is issued. A proposed executive order is forwarded, in turn, to the Office of Management and Budget and the Department of Justice for review and approval, and the National Archives and Records Administration (NARA) for review, before the President may sign it. However, the Attorney General may send an executive order directly to the President, bypassing NARA, if circumstances warrant an expedited process.5

The Federal Register Act of 1935 6 mandates the publication of executive orders in The Federal Register. However, this statute also affords the President some latitude: classified executive orders are not published and executive orders that the President deems as "not having general applicability and legal effect or effective only against Federal agencies or persons in their capacity as officers, agents, or employers thereof" do not have to be published. Two additional sources for executive orders are Title 3 of the Code of Federal Regulations and the Weekly Compilations of Presidential Documents. 7

The Use of Executive Orders During Presidential Transitions

The smooth and orderly transfer of power is a notable feature of presidential transitions in the United States, and a testament to the legitimacy and durability of the electoral and democratic processes. 8 Yet, an impending change in the party that controls the White House may prompt questions about the propriety of the outgoing Administration's actions. 9

Concerns about the volume, timing, and content of executive orders may be heightened during presidential transition periods, particularly during the months leading up to the inauguration. The perception, if not reality, exists that an outgoing President's inclination to act unilaterally increases during the transition period. When a President's successor belongs to the opposition political party, the incumbent may feel compelled to use the transition period to enact policy and effect regulatory actions favored by his party its followers. Others, however, might view the Administration's activities as an attempt to pre-empt the incoming President.

A President's decision to use executive orders may be based on practical, political, or personal reasons, or any combination thereof. Being able to act unilaterally enables a President to establish control over policymaking. Presidents are sometimes aided in this endeavor by the proliferation and ambiguity of statutes, which increase their opportunities for justifying presidential action. 10 Another element of the appeal and usefulness of executive orders is that they allow Presidents to act "quickly, forcefully, and (if they like) with no advance notice." 11 Capitalizing on these features of executive orders enables Presidents to seize the initiative on an issue, shape the national agenda, and force others to respond. For practical or political reasons, Presidents may choose to use executive orders to circumvent a Congress that they perceive as hostile to their policies, after considering whether the Congress is likely to overturn a particular executive order, 12 or as moving too slowly. 13 Regarding the special circumstances of a presidential transition, an incoming President, who is eager to get off to a fast start and distinguish himself from his predecessor, particularly when they are from different parties, would find executive orders an effective way to do both of these things. 14 Executive orders also would suit the needs of an outgoing President, who may be striving to secure his legacy or wanting to commit his successor to certain policies, procedures, and organizational schemes. 15

Timing and Volume of Executive Orders. The table below presents the number of executive orders issued by Presidents William J. Clinton, George H.W. Bush, Ronald Reagan, and Jimmy Carter in each of three stages that make up the presidential transition period. These three stages are comparable, but not equal, in duration, which means it is more meaningful to compare data within each column rather than across columns.

Number of Executive Orders Issued
	Incoming (First term) Jan. 20-Apr. 30	Pre-election Aug. 1-Election	Lame Duck Election-Jan. 20
William J. Clinton	13 (1993)	10 (1996) | 12 (2000)	Not available
George H.W. Bush	11(1989)	7(1992)	17(1992-1993)
Ronald Reagan	18 (1981)	7 (1984) | 9 (1988)	9 (1988-1989)16
Jimmy Carter	16(1977)	20 (1980)	36 (1980-1981)

Source: Lexis-Nexis and 3 C.F.R.

Note: Executive orders are categorized according to signing date. Using the signing date assures that executive orders signed in December, but published in January, are credited to the proper year and, in the case of an election year, the appropriate President.

With the exception of President Carter, these Presidents issued comparable numbers of executive orders at selected points in their careers. How President Clinton decides to use executive orders during his time as a lame duck President remains to be seen. While 11 of the 36 executive orders signed by President Carter as a lame duck had to do with the hostage crisis in Iran, his 25 remaining orders still put him far ahead of Presidents Bush and Reagan. However, the quantity of executive orders issued during his pre-election and lame duck periods is consistent with the pace he maintained throughout his four-year term. Whereas President Carter issued an average of 74 executive orders per year, President Clinton has issued 42, President Bush 40, and President Reagan 45. This comparison shows that recent Presidents, generally, have been consistent with one another in the number of executive orders they issue during different stages of the transition period.

However, a study of executive orders issued between April 1936 and December 1995 indicates that, while the start of a new President's term does not result in a higher number of executive orders, the end of a President's term is notable for an increase in the quantity of executive orders issued. 17 Presidents who were succeeded by a member of the other party signed "nearly six additional orders& in the last month of their term, nearly double the average level." 18 When party control of the White House did not change following a presidential election, there was "no corresponding increase in order frequency& " 19 The author of this study, Kenneth Mayer, asserts that these data are evidence that "executive orders have a strong policy component, as otherwise presidents would have little reason to issue such last-minute orders." Mayer also found that reelection plays a role in the number of executive orders signed and issued. Presidents who are running for reelection issue approximately 1.4 more executive orders per month - 14 during campaign season from January 1 through the end of October - than when they are not running for reelection. 20

Content of Executive Orders. Executive orders range, in terms of their import for government management and operations and the principle of shared powers, and the scope of their impact, from the somewhat innocuous t the highly significant. 21 Presidents use executive orders to recognize groups and organizations; establish commissions, task forces, and committees; and make symbolic statements. Presidents also use executive orders "to establish policy, reorganize executive branch agencies, alter administrative and regulatory processes, [and] affect how legislation is interpreted and implemented." 22 As shown, below, in the sampling of executive orders issued by Presidents Carter, Reagan, Bush, and Clinton, unilateral action by Presidents during transition periods can, and does, result in a mixture of executive orders in terms of their significance and scope.

President Carter. Among the executive orders issued during his transition periods, President Carter established a committee charged with selecting a director for the Federal Bureau of Investigation (Executive Order 11971, February 11, 1977) 23, closed the federal government on Friday, December 26, 1980, in order to give federal employees a holiday (Executive Order 12255, December 5, 1980), and established an advisory council on spinal cord injuries (Executive Order 12270, January 15, 1981). In signing Executive Order 11967, on January 21, 1977, he facilitated the awarding of pardons to persons who had violated the Military Selective Service Act during the Vietnam War. Most notable among the executive orders signed by President Carter during a transition period was a package of 10 orders, signed on January 19, 1981, relating to the negotiated release of American hostages being held by the government of Iran (Executive Orders 12276 through 12285).

President Reagan. Through executive orders, President Reagan approved a seal for the Panama Canal Commission (Executive Order 12304, April 29, 1981), clarified the length of White House Fellowships (Executive Order 12653, September 29, 1988) and established the National Microgravity Research Board (Executive Order 12660, December 16, 1988). He brought agency rulemaking under the control of the Office of Management and Budget and required cost-benefit analyses be conducted for proposed rules (Executive Order 12291, February 17, 1981). President Reagan also revoked two executive orders signed by President Carter, thus terminating certain aspects of the government's wage and price program (Executive Order 12288, Januayr 29, 1981) and disbanding the Tahoe Federal Coordinating Council (Executive Order 12298, March 12, 1981). The significance of these two instances is that, shortly after taking office, a new President overturned decisions made by his predecessor, which is not unusual.

President Bush. Some of the less controversial executive orders signed by President Bush during his transition periods designated the Organization of Eastern Caribbean States as a public international organization (Executive Order 12669, February 20, 1989), delegated some disaster relief and emergency assistance functions from the President to the director of the Federal Emergency Management Agency (Executive Order 12673, March 23, 1989), and established a youth award for community service (Executive Order 12819, October 28, 1992). At the start of his term, President Bush issued Executive Order 12674 (April 12, 1989), establishing principles of ethical conduct for officers and employees of his Administration. In signing Executive Order 12818 (October 23, 1992), President Bush prohibited union-only project agreements for federal projects, thus barring federal contractors from requiring workers to belong to a union.

President Clinton. President Clinton used executive orders to expand the membership of the President's Council on Counter-Narcotics and to change its name (Executive Order 13023, November 6, 1996) and to direct agency heads to purchase energy efficient computer equipment (Executive Order 12845, April 21, 1993). Akin to President Bush's initiative on the matter of ethics, President Clinton signed Executive Order 12834, on the day of his inauguration, January 20, 1993, requiring his senior appointees to take an ethics pledge. Shortly thereafter, President Clinton revoked (Executive Order 12836, February 1, 1993) two of President Bush's executive orders having to do with labor unions, including E.O. 12818, and he imposed limits on the hiring of civilian personnel by the federal government (Executive Order 12839, February 10, 1993).

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FOOTNOTES:

1. For information about other instruments available to the President, see CRS Report 98-611, Presidential Directives: Background and Overview, by Harold C. Relyea.

2. Ibid., p.1.

3. Presidents have a variety of devices at their disposal, but executive orders are notable for combining "the highest levels of substance, discretion, and direct presidential involvement," according to Joel L. Fleishman and Arthur H. Aufses, "Law and Orders: The Problem of Presidential Legislation," Law and Contemporary Problems, vol.40, 1976, p.5.

4. The Constitution does not state explicitly and specifically that the President possesses this authority. Rather, Presidents rely upon Article II, Sections 1, 2, or 3 of the Constitution, which state, respectively: "The executive power shall be vested in a President of the United States of America"; "The President shall be Commander in Chief of the Army and Navy of the United States& "; and "he shall take Care that the Laws be faithfully executed& "

5. U.S. President (Kennedy), "Preparation, Presentation, Filing and Publications of Executive Orders and Proclamations," Executive Order 11030, 44 U.S.C. 1505. 3 C.F.R. 610 (1964).

6. 44 U.S.C. 1505.

7. In addition to hard copies, these two documents, and the Federal Register, are available online at [http://www.access.gpo.gov/su_docs/aces/aces140.html].

8. For additional information on presidential transition, see CRS Report RS20709, Presidential Transition 2000-2001: Background and Federal Support, by Stephanie Smith.

9. See CRS Report RS20730, Presidential Transitions and Administrative Actions, by L. Elaine Halchin.

10. Terry M. Moe and William J. Howell, "The Presidential Power of Unilateral Action," Journal of Law, Economics, and Organization, vol.15, April 1999, pp.141 and 143.

11. Ibid., p.138.

12. Christopher J. Deering and Forrest Maltzman, "The Politics of Executive Orders: Legislative Constraints on Presidential Power," Political Research Quarterly, vol.52, Dec. 1999, pp. 2 and 6.

13. Paul C. Light, The President's Agenda: Domestic Policy Choice from Kennedy to Reagan (Baltimore: Johns Hopkins University Press, 1991), p.118.

14. Mayer, "Executive Orders and Presidential Power," p. 451.

15. Ibid., p.451.

16. While President Reagan's status as a lame duck President was not contingent upon the outcome of the 1992 election, for purposes of comparison, the time frame used for Presidents Bush and Carter is also used for President Reagan.

17. Mayer, "Executive Orders and Presidential Powers," p. 457.

18. Ibid., p.457.

19. Ibid., p.457.

20. Ibid., p.459.

21. For additional information on executive orders, see CRS Report RL30264, Executive Orders and Proclamations, 1993-99: Controversies with Congress and in the Courts, by Louis Fisher, and CRS Report 95-772, Executive Orders and Proclamations, by John Contrubis, pp.7-8.

22. Ibid., p.445. For information on two significant issues that have been the subject of executive orders, see CRS Report RL30071, Emergency Powers and Executive Orders: An Introductory Overview, by Harold C. Relyea, and CRS Report RL30362, Federalism: A Comparison of Executive Orders 13132, 12875, and 12612, by Keith Bea.

23. Signing date.

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