An aide holds executive orders that will be signed by President Trump at the White House on Monday.
Jim Watson/AFP via Getty Images
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Jim Watson/AFP via Getty Images
President Donald Trump began his second term by signing a series of executive actions aimed at reversing his predecessor’s policies and fulfilling some of his many campaign promises.
Within hours of his inauguration, Trump had reversed 78 executive actions by former President Joe Biden and signed dozens of orders, memoranda and proclamations.
Some took effect quickly, such as the pardon granted to some 1,500 defendants on January 6, which saw at least two people released from the Washington prison Monday evening. Others, like an anti-inflation order directing agency heads to “provide emergency pricing relief,” could take longer to implement.
And many – including orders suspending the ban on TikTok (a pre-existing federal law) and revoking birthright (a right enshrined in the Constitution) – have faced or are expected to face legal challenges.
Executive orders do not need to be approved – and cannot simply be overturned – by Congress, according to the American Bar Association (ABA).
But Congress and the courts can potentially block executive orders in other ways.
In 1952, for example, the Supreme Court ruled that President Harry Truman did not have the authority to issue an executive order to seize steel mills to ensure production during the Korean War. In 1992, Congress overturned President George H. W. Bush’s executive order establishing a fetal human tissue bank for scientific research by passing a measure stating that the executive order “shall have no legal effect.”
“Congress could pass legislation that could make it difficult or impossible to enforce the order, such as removing funding,” the ABA says. “Only a sitting U.S. president may rescind an existing executive order by issuing another executive order to that effect.”
The difference between orders, memoranda and proclamations
There are several types of executive actions that presidents can take to reshape government policy without legislation: executive orders, memoranda, and proclamations.
According to the Library of Congress, executive orders address government officials and agencies and govern their actions.
They have the force of law if the subject is “based on the authority of the President arising from the Constitution or law” and must be published in the Federal Register (the daily newspaper of the federal government) to inform the public.
“It cannot supersede or contravene laws passed by Congress, it can only ‘fill the gaps,'” wrote Susan Sullivan Lagon of the Government Affairs Institute at Georgetown University. Laws, on the other hand, come from Congress (which is now entirely controlled by the Republicans).
Most presidents have issued at least one executive order, beginning with George Washington’s 1789 directive asking heads of federal departments to “impress me with a complete, accurate, and distinct general idea of the United States” in their field.
Other notable examples include President Franklin Roosevelt’s 1942 executive order authorizing the internment of Japanese Americans during World War II, Truman’s 1948 executive order desegregating the U.S. military, and President Barack Obama’s 2012 executive order issuing Deferred Action for Childhood Arrivals (DACA).
Executive memoranda are similar to executive orders, but differ in their process: They are not required to cite the president’s legal authority or be printed in the Federal Register, making them more difficult to follow.
Like memos, notices, letters and messages, memorandums are signed by the president and “used to manage administrative matters of the federal government,” the ABA explains.
According to PBS News, Obama issued more than 400 memoranda on topics ranging from gun control to immigration to overtime regulations, while Trump used them during his first term to take action such as imposing tariffs on China and strengthening asylum laws.
In contrast, presidential proclamations generally concern the activities of individuals and generally do not have the force of law. They are typically used to convey information about federal holidays, commemorations and celebrations.
Recently, for example, President Biden issued a proclamation announcing the death of former President Jimmy Carter, in which he ordered flags to be flown at half-staff for 30 days and designated a day of national mourning.
While proclamations today are considered largely ceremonial, the Library of Congress notes that they have historically done more “heavy lifting.”
They include some of the most influential documents in American history, such as Washington’s 1789 Thanksgiving Proclamation, Lincoln’s 1863 Emancipation Proclamation (which declared slaves in the Confederate States free), and President Gerald’s controversial pardon Ford from then to former President Richard Nixon after Watergate in 1974.
How often are decrees typically used?
Thousands of executive orders have been issued in U.S. history, according to a tracker from the American Presidency Project.
All but one president – William Henry Harrison, who died a month into his term – have issued executive orders, although the format and process have changed over the years.
Numbering of executive orders, for example, did not begin until 1907, and regulations for recording them in the Federal Register were not established until 1936 (ironically via an executive order issued by Roosevelt).
Presidents increasingly rely on executive orders as a tool. While the numbers for early presidents were generally in the single digits—John Adams, James Madison, and James Monroe commanded only one each—that number increased steadily throughout the 20th century.
President Theodore Roosevelt was the first to break the 1,000 mark, an average of 145 executive orders per year. Franklin Roosevelt issued a record 3,721 during his 12 years in office, a record.
Since then, the number of executive orders issued under each president has been in the hundreds. Biden issued 162 orders, while Trump issued 220 during his first term.
Cristina Rodríguez, a professor at Yale Law School, told NPR in 2017 that while some presidents have been criticized for implementing their agendas more through executive orders than laws, the quantity is not the only measure to take into account.
“The number of executive orders tells you nothing about whether these executive orders are legal or whether the president has exceeded his authority,” she said. “What matters is what he does under orders.”
