Executive Orders, Memorandum, and Proclamations

There has already been much made of President Trump’s use of Executive Orders in the opening days of his administration. As we have seen, in week one, he issued six Executive Orders, 10 Executive Memoranda, and one Proclamation. That is according to the White House’s website: https://www.whitehouse.gov/briefing-room/presidential-actions, as of this publication.

So what exactly are these things? How do they differ from each other, and how do they work? We’d like to offer this information as a way to help members of the BHS community better talk about them from an informed point of view.

Firstly, it is important to note that all Presidents issue Orders, Memoranda and Proclamations. Put simply, these are the most immediate tools at a President’s disposal to direct the Executive Branch to work on his agenda and to make public statements of desires and policies.

Secondly, it is important to note that none of these tools appear in the Constitution of the United States as a power granted to the President. They have evolved over time as convenient tools that allow the President to direct the attention and efforts of his Cabinet officers and their respective bureaucracies. While not exactly a Constitutional power, the Congressional Research Service considers them to be an inherent, albeit hazy, power of the President.

An Executive Order is, according to Merriam Webster’s Law Dictionary, “an order issued by a government’s executive on the basis of authority specifically granted to the executive branch (as by the U.S. Constitution or a congressional act).” This Order does not enter into force until it is printed in the Federal Register. If the Order is within the scope of the powers granted to the Executive Branch under the Constitution, then the Order has the force of law.  If it does not, or if it comes into conflict with pre-existing legislation or Constitutional authority, then it will be challenged, and the Supreme Court will have to make a ruling on its applicability. Until such time as this happens, however, the offices of the Executive Branch must comply with the contents of the Order as though it were a law.

The Federal Register can be viewed here and in the above link. You will notice, should you click the link, that Executive Orders are numbered sequentially. You will also notice that (as of this writing) the Federal Register has yet to create a Distribution Table for President Trump. As a result, there is a question as to the efficacy of these Orders until such time as they are entered and numbered. This is no doubt a function of time and bureaucracy, however, and will likely be rectified soon.

An Executive Memorandum is very similar to the Executive Order, and some have argued that they should both be lumped together and be called “Executive Actions.” However, a Memorandum does not carry the same force of a law, is not sequentially numbered, and is not entered into the Federal Register. In fact, a Memorandum does not even have to be public. It is similar to an Order in that the Memorandum directs members of the Executive Branch to do something in a certain way, or not do something in a certain way.  Different Presidents have treated Memoranda in different ways, with some viewing them as equivalent to an Order and others not. The Obama Administration began the practice of making Memoranda publicly available.

Lastly, an Executive Proclamation (or Presidential Proclamation as it is commonly known) is a mostly ceremonial statement directed at those outside of the Executive Branch. It does not necessarily carry any force of law, depending upon the content, and whether or not there is Congressional authorization behind it. The President may proclaim a day of mourning, a day of celebration of a person or group or event, for instance. According to the Yale Law Library, Proclamations also encompass Presidential Pardons, which do have the force of law. Proclamations may also make statements of policy, but like the others, are subject to challenge and review should they prove to be unconstitutional.

We hope that this is helpful as you go forward and discuss the actions taken by whomever occupies the White House at whatever point in history you feel like arguing about.

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