Prepared by Rob Richardson for LCI Issues Team
There are three main types of executive actions the President of the United States can issue– Executive Orders, Presidential Memoranda and Presidential Proclamations. Although not discussed in detail below, Presidential Notices and Determinations also are issued by the White House and are statements of an official policy or position of the Executive Branch. By Law, only Executive Orders must be published in the Federal Register; however, any of the above may be listed there. Executive actions published in the Federal Register are given priority and the hierarchy is: Proclamations, Executive Orders, Presidential Memoranda, Presidential Notices and Determinations.
Discussed below in more detail are: Executive Orders, Presidential Memoranda and Presidential Proclamations. Also, listed below are the actions Trump has taken regarding each of the three.
- Executive Orders
Executive orders issued by the President are directed towards officers and agencies of the Federal government. They have the full force of law if based on the authority derived from statute or the Constitution itself. The ability to make such orders is also based on express or implied acts on Congress.  Like both legislative statutes and regulations promulgated by government agencies, executive orders are subject to judicial review and may be overturned if the orders lack support by the Constitution either from a Constitutional clause granting specific power or by Congress delegating that power to the President. Major policy initiatives require approval by the legislative branch, but executive orders have significant influence over the internal affairs of government, deciding how and to what degree legislation will be enforced, dealing with emergencies, waging wars, and in general fine-tuning policy choices in the implementation of broad statutes.
Executive orders are assigned numbers and required by law to be published in the Federal Register. Typically, they are organizational, that is they are used to create new executive branch committees, processes or lines of responsibility. They can impose economic sanctions on other countries, declare states of emergency, or give federal workers a day off.
Most executive orders stem from a president’s desire to bypass Congress. The legislative body is not required to approve any executive order, nor can it overturn an order. If the president issues an executive order in accordance with a law passed by the legislative branch and Congress disagrees, they can pass a bill clarifying the law. However, the president has the power of the veto, in which case Congress would have to override the veto with a two-thirds majority in both the House of Representatives and the Senate. Also, if it doesn’t like an executive order Congress can pass a law to cut funding for the order’s implementation. But even then, the president can veto such a defunding law.
If an Executive Order pertains to the president’s independent constitutional responsibilities, then only the courts can reverse it. For example, the Emancipation Proclamation which was also an Executive Order was issued by Abraham Lincoln in accordance with his power as commander-in-chief. While Congress did not have the power to override that order, the courts could have declared it unconstitutional.
The one sure way of getting rid of an executive order is in the White House. If an administration doesn’t like an order from a previous president, it can legally reverse it on its own.
Scholars have typically used the number of executive orders per term to measure how much presidents have exercised their power. George Washington only signed eight his entire time in office, according to the American Presidency Project, while FDR penned over 3,700.
In his two terms, President Barack Obama issued 277 executive orders, a total number on par with his modern predecessors, but the lowest per year average (35) in 120 years. Trump has issued 30 orders.
- Presidential Memorandum
Presidential Memoranda are an increasingly common but lesser known expression of presidential power that came to replace many executive orders under President Obama. They also have the force of law on the Executive branch and sometimes the term is used interchangeably. They may be published or not in the Federal Register, but it is the publication that gives them “general applicability and legal effect.” Phillip Cooper in his book By Order of the President: The Use and Abuse of Executive Direct Action considers Presidential Memoranda to be “executive orders by another name, and yet unique.” They do not have to be published or numbered (though they can be), and usually delegate tasks and reports assigned by Congress to the President, start a regulatory process, or direct a specific department or agency to do something. Trump has issued 27 memoranda.
- Presidential Proclamation
A Presidential Proclamation is a statement issued by a president on a matter of public policy. They are generally defined as, “The act of causing some state matters to be published or made generally known.” Generally, there are two types of proclamations issued by President, “ceremonial”, which designate special observances or celebrate national holidays, and “substantive”, which usually relates to the conduct of foreign affairs and other sworn executive duties. These may be, but are not limited to, matters of international trade, the execution of set export controls, the establishment of tariffs, or the reservation of federal lands for the benefit of the public in some manner.
Proclamations are also used, often contentiously, to grant presidential pardons. Examples are: Gerald Ford’s pardon of former President Nixon. Jimmy Carter’s of Vietnam War draft evaders and George W. Bush’s clemency of Lewis “Scooter” Libby’s prison sentence.
A Presidential Proclamation does not have the force of law, unless authorized by Congress. Trump has issued 21 proclamations.
 Article I, Section 8, of the Constitution identifies in 17 paragraphs the powers of Congress. The last paragraph (18), the Necessary and Proper Clause (sometimes called the elastic clause)grants Congress the powers that are implied in the Constitution, but that are not explicitly stated. That is why the powers derived from the Necessary and Proper Clause are referred to as implied powers.