Executive Order and Executive Action – What’s the Difference?

(NationalUSNews.com) – Many Americans wonder exactly what the US President can and can’t do. Can he lower gas prices (no), or issue orders that puts US manufacturers on a war footing to increase production of oil (yes) and baby formula (also yes)? In order to figure out what powers the President has, you’ve got to go back to the US Constitution—specifically Article II, Section I, which addresses the powers of the President.

The executive Power shall be vested in a President of the United States of America.

The Articles were signed at the Constitutional Convention of 1787 and ratified by the states in 1788. The interpretation of this Article is that the President has the authority for the following:

“Executive orders, presidential memoranda, and proclamations are used extensively by Presidents to achieve policy goals, set uniform standards for managing the executive branch, or outline a policy view intended to influence the behavior of private citizens. The U.S. Constitution does not define these presidential instruments and does not explicitly vest the President with the authority to issue them. Nonetheless, such orders are accepted as an inherent aspect of presidential power. Moreover, if they are based on appropriate authority, they have the force and effect of law.”

What this means in plain English is that the President has the authority to issue executive actions if he or she believes that citizens will benefit from a particular action or inaction. An executive order has the force of US law behind it, although Congress can take action to void that order through legislation, and the federal courts also have the authority to overturn executive orders.

What’s an executive action?

An executive order is actually a form of executive, or presidential action. There are three types of executive actions.

Presidential proclamations

These are primarily policy announcements—that bring attention to ceremonial events—such as the Thanksgiving turkey pardon or National African American History Month. Some more relevant proclamations deal with trade issues, specifically tariffs, and are issued for the record and for research purposes.

Presidential memoranda

Memoranda issued by the President carry the same weight as an executive order, but there are slight differences in the administrative process. Memoranda don’t need to be published in the Federal Register, don’t require numbering, and are much easier to revoke or amend—the President simply issues another memorandum nullifying the first one. Memoranda don’t even have to be published.

Presidents use them to delegate Congressional tasks, initiate regulatory processes, or ask an agency or department to just do something. They basically grease the daily wheels of government.

Presidential memoranda are used to delegate tasks and reports assigned by Congress to the president, start a regulatory process, or direct a specific department or agency to do something.

Executive orders

Executive orders are more “official” and prestigious in that they are serially numbered and are required by law to be published in the Federal Register, which is the executive branch’s version of the Congressional Record. President Kennedy issued an executive order that requires the President to cite their Article II authority to do so in the body of the order itself.

Orders are also more organizational than memoranda. Presidents issue them to create new branches of government (a recent one is the order creating the Space Force branch of the military), committees, or processes—imposing economic sanctions, declaring a state of emergency, or establishing a federal holiday.

Order of precedence

Given the weight of executive orders—that they’re issued for the most serious Presidential actions—it’s a bit surprising that in the executive actions hierarchy, it’s the Proclamations that are at the top, followed by executive orders. The rest of precedence is memoranda, notices, and determinations, which Congress has the authority to require.

Copyright 2022, NationalUSNews.com