7.3 Executive Orders and Administrative Actions

Executive orders and administrative actions are powerful tools presidents use to shape policy without Congress. These directives let presidents act quickly on their agendas, but they're not unlimited. Courts and lawmakers can challenge or overturn them, keeping presidential power in check.

The federal bureaucracy plays a crucial role in implementing these directives. Agencies create rules and regulations based on laws and presidential orders. This process involves public input and is subject to oversight, ensuring a balance between executive authority and democratic accountability.

Executive Directives

Types of Executive Directives

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• Executive orders are legally binding directives issued by the President to federal agencies, carrying the force of law and requiring no Congressional approval (Executive Order 9066 authorizing Japanese-American internment during WWII)
• Presidential proclamations are official statements issued by the President, often ceremonial in nature but can also carry legal weight (Proclamation 95 declaring a national emergency during the Civil War)
• Presidential memoranda are similar to executive orders but typically direct a specific federal agency to take action, rather than establishing broad policies (Presidential Memorandum on Promoting Diversity and Inclusion in the National Security Workforce)
• Administrative actions encompass a wide range of executive decisions, including issuing rules, regulations, and guidelines to implement laws and policies (President Obama's DACA program implemented through DHS memorandum)

Scope and Limitations of Executive Directives

• Executive directives allow the President to take swift action and shape policy without Congressional approval, but are subject to legal and political constraints
• Executive orders and proclamations must be based on existing constitutional or statutory authority, and can be overturned by Congress through legislation or the courts through judicial review (President Truman's executive order seizing steel mills ruled unconstitutional in Youngstown Sheet & Tube Co. v. Sawyer)
• Presidential memoranda and administrative actions are generally more limited in scope, focusing on internal executive branch operations and policy implementation rather than broad policy changes
• All executive directives are subject to public scrutiny and political backlash, and can be reversed by future presidents (President Biden reversing many of President Trump's executive orders on immigration and climate change)

Federal Bureaucracy

Structure and Function of Federal Agencies

• Federal agencies are established by Congress to implement and enforce laws, consisting of executive departments (State Department), independent agencies (EPA), and government corporations (USPS)
• Agencies are headed by political appointees chosen by the President and confirmed by the Senate, overseeing a large workforce of career civil servants with expertise in specific policy areas
• Agencies are organized into hierarchical structures with clear lines of authority and responsibility, and are subject to oversight by the President, Congress, and the courts (FDA within the Department of Health and Human Services)

Regulatory Power and Rulemaking Process

• Federal agencies have the power to issue regulations, or rules, that carry the force of law and interpret, implement, and enforce legislation passed by Congress (OSHA issuing workplace safety regulations)
• The rulemaking process involves issuing a proposed rule, soliciting public comments, and issuing a final rule, with opportunities for judicial review and Congressional oversight (EPA's Clean Power Plan regulating carbon emissions from power plants)
• Agencies must follow the Administrative Procedure Act, which requires public notice and comment periods, and ensures that regulations are based on substantial evidence and not arbitrary or capricious

Constitutional Limits on Agency Power

• The Constitution places limits on the power of federal agencies, requiring that they act within the scope of their statutory authority and not violate individual rights (FDA's tobacco regulations struck down in FDA v. Brown & Williamson Tobacco Corp.)
• Agencies are subject to the non-delegation doctrine, which requires that Congress provide an intelligible principle to guide agency discretion when delegating legislative power (NIRA struck down in Schechter Poultry Corp. v. United States)
• Agencies must also respect federalism and not commandeer state governments or officials to implement federal policies (Printz v. United States striking down Brady Act's requirement that state and local law enforcement conduct background checks)

Checks and Balances

Judicial Review of Executive Actions

• The judicial branch serves as a check on executive power through the power of judicial review, the ability to review and strike down executive actions that violate the Constitution or exceed statutory authority
• Federal courts can issue injunctions to block the implementation of executive orders, rules, and regulations pending further review (federal judge blocking President Trump's travel ban)
• The Supreme Court has the final say on the constitutionality of executive actions, and can strike them down permanently (DAPA program struck down in United States v. Texas)

Congressional Oversight of the Executive Branch

• Congress serves as a check on executive power through its oversight and investigative powers, including the power to subpoena documents and testimony from executive branch officials (House Oversight Committee investigating Fast and Furious scandal)
• Congress can also use its power of the purse to restrict funding for executive actions it opposes, or use the Congressional Review Act to overturn agency regulations (Congress overturning OSHA's ergonomics rule in 2001)
• In extreme cases, Congress can impeach and remove executive branch officials, including the President, for high crimes and misdemeanors (House impeaching President Clinton in 1998)