Ron Sachs – Pool/Getty Images(WASHINGTON) — During his inauguration, Donald Trump painted a bleak picture of life in America and said that the buck stops with him.
“The time for empty talk is over,” he told the crowd assembled in front of the Capitol. “Now arrives the hour of action.”
In the days since he has taken office, Trump, who has long cast himself a doer in a world of talkers, has been furiously issuing what he calls “orders” and what are formally known as “executive orders” and “presidential memorandums.” As of Wednesday he had issued four executive orders and eight presidential memorandums since taking office.
Many appear to be aimed at fulfilling his campaign promises — building the wall, punishing sanctuary cities, stopping illegal immigration, bringing jobs back and establishing energy independence.
A number of those actions also appear to attempt to roll back his predecessor President Obama’s policies and agenda, another promise that Trump made during the campaign.
On Inauguration Day, Trump signed his first executive order targeting the Affordable Care Act, known as Obamacare. The order said until the Affordable Care Act is repealed, the executive branch should take “all actions consistent with law to minimize the unwarranted economic and regulatory burdens of the Act.”
The Constitution states that “executive power shall be vested in a President of the United States of America.” However, there’s nothing in the Constitution or any federal statute that gives the president the power to issue the directives in any particular way, according to Professor Aziz Huq, who teaches law at the University of Chicago.
Orders are also subject to repeal or modification by Congress in certain cases and review by the Supreme Court.
Executive orders and presidential memorandums both fall under the umbrella of a president taking executive action (as do proclamations). The two types of presidential actions are not quite the same thing, but their differences are slight if any at all.
“The distinction between these instruments—executive orders, presidential memoranda, and proclamations — seems to be more a matter of form than of substance, given that all three may be employed to direct and govern the actions of government officials and agencies,” the Congressional Research Service said in a report.
Executive Orders
Pew Research recently looked at the history of executive orders issued by each commander-in-chief and found that President Obama issued 277 during his tenure. That pales in comparison to the number issued by Franklin Delano Roosevelt over his terms in office — 3,721, according to Pew.
According to Huq, an “executive order is an instruction in writing issued from the White House by the president that is usually directed at an agency or department within the government that…when it jumps through certain procedural hoops has the force of law,” he told ABC News in an interview.
One difference between memorandums and orders is that the language may differ, experts say.
“You’ll see that in any of the executive order that Trump issues there’s going to be some phrase right in the beginning that cites either constitutional or statutory authority delegated from Congress,” Professor Daniel Gitterman, UNC Public Policy professor and author of “Calling the Shot: The President, Executive Orders, and Public Policy,” said in an interview with ABC News.
Two of Trump’s executive orders start off: “By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows…”
Executive orders also are numbered. Once a president signs an executive order, the White House sends the order to the Office of the Federal Register (OFR) for record, which keeps a log of all the executive orders. The OFR numbers each executive order from the president as a part of a series.
According to Gerhard Peters and John T. Woolley of the American Presidency Project, executive orders have been numbered since 1907, a process started by the State Department.
The president can revoke, modify or replace his own orders or his predecessor’s, according to the Congressional Research Service.
Past executive orders from presidents include President Franklin Roosevelt’s controversial order that resulted in Japanese-Americans being relocated to internment camps and President Lyndon Johnson’s executive order to provide equal opportunity for minorities in government employment.
More recently, President Obama used executive orders for sanctions against Iran and to establish the Economic Recovery Board after the Great Recession.
Presidential Memorandums
On Inauguration Day, Trump put his signature on his first presidential memorandum. On Monday, Trump signed three presidential memorandums, including one that withdraws the U.S. from the Trans-Pacific Partnership, and four more memorandums on Tuesday.
There is no formal procedure that defines what a presidential memorandum is, what it can do, and how it can be issued, according to Professor Huq.
“[Presidential memorandums] are used in the last 20 years much in the same way as an executive order gets used but without the level of formality and process and input from different officials in the administration that executive order requires,” Huq said.
Gitterman believes that the Trump administration will likely use a mix of executive orders and memorandums going forward.
Unlike executive orders, memorandums aren’t thoroughly recorded by the government.
“Memorandums go below the radar much more and are harder for, I think, the news media and the public to track,” Gitterman said.
“It’s kind of a problem that we don’t have any stable framework for this,” Huq said in regard to keeping tracking of presidential directives. “The way it’s done seems to change over times along with the stout necessities of the moment and that seems very ad hoc.”
Trump’s White House appears to be tracking and publishing executive orders, memorandums and proclamations on its website (although it may not be up-to-date).
“As a matter or historical practice, however, it seems that Presidents are more apt to utilize executive orders on matters that may benefit from public awareness or be subject to heightened scrutiny,” the Congressional Research Service report said. “Memoranda, on the other hand, are often used to carry out routine executive decisions and determinations, or to direct agencies to perform duties consistent with the law or implement laws that are presidential priorities.”
What They Do and Don’t
According to the Congressional Research Service, executive orders “if they are based on appropriate authority…have the force and effect of law.”
“While the President’s ability to use executive orders as a means of implementing presidential power has been established as a matter of law and practice, it is equally well established that the substance of an executive order, including any requirements or prohibitions, may have the force and effect of law only if the presidential action is based on power vested in the President by the U.S. Constitution or delegated to the President by Congress,” CRS says. “The President’s authority to issue executive orders does not include a grant of power to implement policy decisions that are not otherwise authorized by law.”
The report cites a widely-adopted 1957 interpretation from the House Government Operations Committee that says that executive orders “usually affect private individuals only indirectly” while proclamations “in most instances affect primarily the activities of private individuals.”
The Supreme Court has ruled on the validity of executive orders and the standard appears to be a 1952 case involving former President Harry Truman, the CRS report said. The majority in the case held that the president, as executor of the laws, cannot make law, deeming Truman’s action unconstitutional.
But a concurring opinion in that case by Justice Robert Jackson appears to have held the most weight, describing three cases for presidential action — the strongest when the chief executive is expressly authorized by Congress or the Constitution to do something, the next tier for situations where Congress and the Constitution are silent and the lowest tier for going directly against the will of Congress, the CRS said in the report.
In addition to successive presidents, Congress can modify or nullify orders that are based on the authority granted to the president by Congress, according to the CRS report, but the legislature has rarely done so in modern times.
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