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Executive Orders

History of Executive Orders

All but one of the US presidents, beginning with George Washington, have issued orders which can be equated with the modern-day executive order. The sole exception was William Henry Harrison, who died in office after having held the presidency for less than a month. Before 20th century, executive orders were not documented and catalogued according to a uniform scheme; they were seen only by the agencies to which they were directed. Then, in 1907, the Department of State instituted [PDF] a numbering scheme, starting retroactively with an order dated October 20, 1862, issued by President Abraham Lincoln. The orders which later became known as "executive orders" probably take their name from this document, titled "Executive Order Establishing a Provisional Court in Louisiana."

The Federal Register Act of 1935 required that all executive orders and proclamations be published in the Federal Register. Since then, all executive orders have been made available in CFR Title 3 compilations.

Abraham Lincoln used an executive order to suspend the habeas corpus rights of John Merryman, leader of an active state militia that had been attacking federal troops passing through Virginia and Maryland on the eve of the US Civil War. Later, the US Congress passed the Habeas Corpus Act of 1863, giving the president the power to suspend habeas corpus, which he had assumed himself through the executive order.

There was a dramatic increase in the use of executive orders during the period beginning with the Great Depression and leading into World War II. During this time, Congress extended wide latitude to the president to act in the best interests of a nation facing economic crisis and war. Franklin D. Roosevelt issued, by a wide margin, the largest number of executive orders, with a total of 3,522. He used these orders to seize [PDF] factories, mines and other privately held assets for wartime production.

To this day, executive orders remain a powerful and immediate way for a president to advance his policies. President Ronald Reagan used executive orders to repeal what his administration viewed as regulations that were holding back the US economy. Notably, President George W. Bush used an executive order to create [PDF] the Department of Homeland Security. He also used an executive order to limit public access to presidential documents. President Barack Obama has used executive orders to implement policies in the face of what his administration views as an increasingly intractable Congress. He also attempted to use executive orders to change some of President George W. Bush's more controversial policies, including the creation of the detention facility at Guantanamo Bay, which remains open.

Executive Orders and the Supreme Court

Executive orders, like other rules issued by the federal government, are subject to judicial review. A significant example of the Supreme Court striking down a president's executive order came about in 1952. In Youngstown Sheet & Tube Co. v. Sawyer, the court held struck down Executive Order 10340, issued by President Harry Truman, which ordered Secretary of Commerce Charles Sawyer to seize control of a majority of the nation's steel mills in anticipation of a steelworker strike during the Korean War. The court held that President Truman lacked the constitutional or statutory power to seize private property.

Following Truman's presidency, the Supreme Court did not invalidate any executive orders for several decades. In Dames & Moore v. Regan, the Court reviewed several executive orders issued by President Reagan which nullified holds on Iranian assets and removed claims against Iran from US courts following the resolution of the Iranian Hostage Crisis. The court took a deferential approach to their review and allowed President Reagan's executive orders to stand. Judicial deference in cases concerning executive orders has largely continued, although a number of executive orders have come under review in district courts.

On July 30, 2014, the US House of Representatives approved a resolution that allowed Speaker John Boehner to sue President Barack Obama over an executive order the president issued altering the timing requirements for implementation of the Affordable Care Act (ACA). The order delayed implementation of certain aspects of the ACA, notably a mandate on employers who did not provide health care coverage. The suit claimed that President Obama's executive powers did not authorize the changing of such a provision. To date, however, the Supreme Court is yet to hear a challenge to any executive order made by President Obama.

Recent Key Executive Orders

Executive Order - Climate-Resilient International Development (not yet numbered)
September 23, 2014

This executive order requires that climate-resilience considerations be integrated into all international development work done by all agencies of the United States government, to the fullest legal extent.

Executive Order 13673 - Fair Pay and Safe Workplaces
July 31, 2014

This executive order requires potential federal government contractors to disclose labor law violations from the past three years before they can receive a contract and requires that certain agencies designate a "Labor Compliance Advisor." Additionally, federal contractors with $1 million or more in contracts are prohibited from requiring their employees to enter into pre-dispute arbitration agreements for disputes arising out of Title VII or from torts related to sexual assault or harassment. This order permits existing contracts to stay as they currently are.

Executive Order 13672 - Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity
July 21, 2014

This executive order adds the words "sexual orientation and gender identity" into existing executive orders that prohibit certain forms of discrimination in employment by federal contractors.

Executive Order 13665 - Nonretaliation for Disclosure of Compensation Information
April 8, 2014

This executive order prohibits employers working under a government contract from retaliating against employees in regards to their employment for disclosure of compensation information.

Executive Order 13658 - A Minimum Wage for Contractors
February 12, 2014

This executive order raises the minimum wage for most federal contractors to $10.10 per hour beginning January 1, 2015. Additionally, beginning January 1, 2016, it empowers the Secretary of Labor to adjust the amount annually.

Additional recent executive orders have dealt with a plethora of issues, including penalizing individuals supporting certain foreign movements in places from South Sudan to Ukraine, expanding the eligibility for the Defense Meritorious Service Medal, and establishing an executive board to review a particular labor dispute.


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Timeline

07/21/2014: Obama signed order on LGBT job discrimination

04/08/2014: Obama announced the signing of executive actions targeting gender wage gap

11/01/2013: Obama administration established climate change task force through executive order

09/25/2012: Obama signed order strengthening protections against human trafficking

04/23/2012: Obama order allowed sanctions for using technology to violate human rights

02/06/2012: Obama signed order imposing stricter sanctions on Iran

07/25/2011: Obama issued sanctions to fight international criminal organizations through executive order

03/07/2011: Obama ordered resumption of Guantanamo military trials

05/21/2010: Obama signed order establishing commission to investigate BP Gulf oil spill

03/24/2010: Obama signed executive order limiting federal abortion funding

 ...[more]

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