Featured US History and Constitution
Bethanne Kim  

What is an Executive Order?

What is an Executive Order? President Obama just signed one to allow young illegal immigrants to remain in the country, but do you really know what one is?

They are much like a law written by Congress but do not, of course, require Congressional approval.  This means that the President, one person, can do things that Congress will not or cannot do. Many, if not most, Executive Orders deal with bureaucratic details such as transferring the administration (governing) of American Samoa from the Secretary of the Navy to the Secretary of the Interior. (Yes, they really are that dull.) These bureaucracies or departments within the government report up to a Secretary who in turn reports to the President as part of his Cabinet. They do not report directly to the Congress. They are administered by the Executive Branch, which the President is the head of.


Not all are that boring or limited in scope. In 1942, FDR signed Executive Order 9066. It led directly to thousands of  Japanese Americans, many citizens but all here legally, being interned for years during World War II. They lost their rights. They lost their property and their businesses. They lost their freedom. They lost their dignity. And it was all done by Executive Order. The limited media coverage at the time made it seem very different from the stark reality these Americans were forced to endure by their own government. Despite these actions not being authorized by Congress, they still had the force of law behind them.

What do you think of Executive Orders? Do you think they allow the President to make law without the Congress and against the structure established by the Constitution, or do you think it’s a way to address smaller or urgent problems quickly and efficiently? Or is it both? If it’s both, how can that be? Or is it even more simple – they allow the President to manage all the Departments in the Executive Branch?

In addition, unlike laws passed by Congress, Executive Orders can simply be revoked. A new President, or even the same one if they change their mind, can rescind it. A law cannot be taken back so quickly or easily, or by just one person.

The biggest change ever made in our country by Executive Order was ending slavery – or so I thought until recently. The Emancipation Proclamation President Lincoln issued was actually US Navy Order No. 4, not an Executive Order. An Executive Order would  have applied to all the states including the ones still in the Union and supporting the Northern War Effort. By issuing a Navy Order as Commander in Chief instead, Lincoln guaranteed that it only applied to the states in rebellion. This also meant that slavery wasn’t truly ended by it because it was still legal in some states. Because the Emancipation Proclamation wasn’t a law, as mentioned above, it could also have theoretically been rescinded by a future President. Clearly, that would have been easier said than done for slavery, but that doesn’t mean it couldn’t have been tried.

Why do you think President Lincoln chose to use a Naval Order rather than having Congress pass a law to end slavery? Do you think Congress could or would have passed Emancipation for the entire nation during the Civil War?

Article 1 Section 8 of the US Constitution states one of the rights and responsibilities of the Congress is “to establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.” This is why setting rules (laws) for Immigration and Custom Enforcement (ICE) is the responsibility of Congress.

Given that the Constitution specifically states that Congress is to establish the rules for Naturalization (citizenship), under what conditions do you think it is appropriate for a President to issue Executive Orders about citizenship? Would it have been appropriate for President Lincoln to issue an order that gave freed slaves and other blacks citizenship, even though the Supreme Court’s Dred Scott Decision said otherwise?  Do you think it would it have been legal, given the Dred Scott Decision? (A Constitutional Amendment is required to over-rule a Supreme Court decision.) Why do you think he choose to write an Executive Order dealing with immigration when it is clearly reserved for Congress?

The National Archives have a listing of all the Executive Orders from FDR to the present so you can read them for yourself.

The next time our President signs an Executive Order, what question will you bring to the conversation?

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