President Biden has already issued a flurry of executive orders and actions on various topics relating to the Coronavirus, immigration, racial and economic equity, and foreign policy. While the use of executive orders is commonplace for presidents, their origin and pattern of use have varied significantly throughout the past two centuries. Here are five facts on executive orders:
- The authority for the president to issue executive orders is rooted in Article 2, Section 3 of the Constitution, which states that the president “shall take Care that the Laws be faithfully executed.”
Neither the Constitution nor statute explicitly gives presidents the power to issue executive orders, and Congress maintains the ability to pass legislation overriding an executive order. Most executive orders pertain to the operation of federal agencies by explaining how those agencies should interpret the law. Presidents can also declare national emergencies through executive orders, which allows them to shift already-appropriated funds to handle a crisis. The use of executive orders is long-standing, with George Washington being the first president to issue one about governmental department reports. While many of the orders deal with mundane topics such as federal workplace rules, recent ones have addressed major hot button issues including President Obama’s executive order mandating the closing of Guantanamo Bay and President Trump’s ban on travel from certain Muslim-majority countries.
- Franklin D. Roosevelt issued the most executive orders as president, with a total of 3,721 during his more than three terms in office.
The use of executive orders has increased immensely over the past two centuries. The first six presidents issued only 18 executive orders in total over nearly 40 years, with James Madison and James Monroe issuing only one order each in their eight years in office. Theodore Roosevelt was the first president to use more than 1,000 executive orders while in office, and after him, only two presidents (Gerald Ford and George H.W. Bush) issued fewer than 200 during their time in office. President George W. Bush issued 291 orders over his two terms, President Obama issued 276, and President Trump issued 220 executive orders over four years. After World War II, presidents issued between 30 and 60 orders every year on average.
- Federal courts have created rules as to when executive orders should be overturned, though this happens rarely.
Executive orders are subject to judicial review just as other laws and regulations. The most significant precedent from the Supreme Court is the “rational basis” review (which the Federal Judicial Center describes roughly as the idea that an executive order should “survive a due process challenge if it was rationally related to a legitimate governmental purpose.”), established in the New Deal era. While the method to determine rationality is not universal, the review generally allows executive orders to stand. One of the most significant decisions under this review was Korematsu v. United States (1946), in which the Supreme Court upheld an executive order moving numerous Japanese-Americans to relocation camps. The court also issued numerous rulings on the impact of certain executive orders on the separation of powers. One of the most important decisions was Youngstown Sheet & Tube Co. v. Sawyer (1952), where the court found that President Truman’s order to take over the steel mills overstepped his Article 2 powers and used powers designated for Congress.
- As of February 11, President Biden had issued 30 executive orders.
A significant number of the orders reversed President Trump’s policies, including increasing the number of refugees allowed into the country per year and overturning the ban on transgender people serving in the military. Many of Biden’s executive orders dealt with the coronavirus, mandating masks in airports and interstate travel, and directing the Departments of Education and Health and Human Services to establish guidelines for reopening schools. He also reopened the healthcare.gov exchanges for three months to allow Americans to enroll in health care coverage for 2021. He was far more active than his recent predecessors in his first days in office, signing 25 executive orders in the first 12 days, more than every president since President Clinton combined. If President Biden were to keep up this pace, he would sign over 100 executive priorities per year, a number not seen since the mid-20th century.
- Presidents have increasingly turned to executive orders when their policy priorities stall in Congress.
In October 2017, when the Senate failed to repeal and replace the Patient Protection and Affordable Care Act under budget reconciliation, President Trump issued Executive Order 13813, which substantially changed how the executive branch enforced the law by allowing companies to use Health Reimbursement Arrangements to pay insurance premiums, among other changes. In June 2012, President Obama signed an executive order shielding from deportation undocumented immigrants who arrived in the U.S. as children (commonly called DREAMers) and offering them work permits in the U.S. The president described this as a stopgap measure until Congress could pass a broader immigration package to overhaul the nation’s immigration laws, though such a package was never passed.