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The Sources of Law project is an examination of the origins and hidden ways that important legal authorities impact our lives without us fully understanding why or how. This project will focus on three areas: Executive Orders, the First Amendment, and insurance.

Before January 27, 2017, you may not have been a regular executive-order watcher—the folks here at N.Y.U. Law Review’s Online Department certainly weren’t. Now, however, many of us are on a “first-number” basis with EO 13769, President Trump’s notorious travel ban, and have grown accustomed to tracking his rollouts of new EOs. (Click here for the current list. You can track presidential actions yourself using the “Presidential Actions” app, available for free on your preferred platform.) Executive orders, however, are nothing new—Franklin Roosevelt’s 1942 authorization of Japanese-American internment came via EO 9066, Harry Truman temporarily seized American steel plants under the auspices of EO 10340, and George W. Bush established the Office of Homeland Security through EO 13228.[1] Nevertheless, the ubiquity of these documents belies their rather obscure legal foundations and the contestable contours of their legal authority. What gives EOs legal legitimacy? Here’s Online’s fast take:

Origins and Legal Authority of EOs

Although no provision of the Constitution or early federal statute explicitly authorizes the use of executive orders, the practice took hold during George Washington’s presidency: Various commentators credit Washington with issuing the first “executive order” when, in 1789, he sent duplicate letters to the heads of several executive departments requesting that they report back to him “a full, precise, and distinct general idea of the affairs of the United States.”[2] While these letters hardly resemble the public, formally published declarations we recognize as executive orders today, they are regarded as a sort of ur-EO because their essential function was the same as that of the modern EO¾that is, affording Presidents seeking to fulfill their Article II duties a mechanism for directing subordinate executive officials to do certain things.

The basic legal authority for EOs thus stems from Article II of the Constitution—a given EO is legitimate if the President is using it in furtherance and within the confines of his or her Article II duties. The difficulty with this story of EO legality, however, is that the scope of presidential power is often hotly contested and, frankly, unclear. As an illustration, consider the controversy surrounding George Washington’s first presidential proclamation. As the French Revolutionary War took on a global dimension in 1793, the Washington administration sought to pursue a position of U.S. neutrality. While a broad reading (advocated by Alexander Hamilton) of the President’s Article II “executive power” suggested that Washington could make this policy decision unilaterally, Washington in fact considered calling Congress back into session so that the position could be declared by the legislative, rather than executive, branch. This evidenced Washington’s appreciation for a narrower reading of executive power that James Madison notably supported. Madison believed that the President’s core duty was to faithfully execute laws passed by Congress. They thus viewed presidential actions not explicitly authorized by the Constitution or federal statute with skepticism. A unilateral declaration of neutrality by the President was sure to raise eyebrows, for not only did it push the outer limits of constitutionally enumerated presidential power, it looked an awful lot like the sort of presidential lawmaking the Constitution’s separation of powers was meant to foreclose.[3]

In the end, Washington left Congress’s recess untouched and issued a presidential proclamation of neutrality on April 22, 1793. The proclamation declared the country’s intention to maintain “friendly and impartial” conduct toward the belligerent parties, enjoined Americans from acting in ways that would undermine U.S. neutrality, and directed federal law enforcement to prosecute individuals who did so. Madison, writing under a pseudonym, defended the proclamation’s constitutionality, arguing that the President’s declaration of neutrality merely stated a diplomatic position Congress had already adopted, and its directions to American citizens and law-enforcement officials were necessary to ensure that this law of Congress would be faithfully executed.

Nonetheless, as Washington began to implement the policy of neutrality, his administration engaged in activity that looked awfully legislative. In July 1793, for example, Washington’s cabinet produced a set of “Rules Governing Belligerents” that told U.S. residents how they must interact with foreign naval vessels in U.S. ports.[4] Although these rules were driven by the desire to enforce the United States’ neutrality policy, they evidenced how “faithful execution of the law” can open the door to a certain amount of executive “lawmaking” in the form of discretionary determinations about how the law will be enforced. Washington thus became subject to the criticism that he was exceeding his Article II authority and stepping on Congress’s legislative toes. Congress’s 1794 passage of the Neutrality Act, which authorized the administration to prosecute those who violated the neutrality proclamation, however, provided a congressional seal of approval that covered Washington’s legal bases.

The controversy over Washington’s neutrality proclamation illustrates why the legal authority for executive orders is often hazy: The proper distribution of power between the President and Congress is something the Constitution leaves open to interpretation. Justice Jackson discussed this issue in his concurrence to the Supreme Court’s opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In Youngstown, the Court struck down President Truman’s seizure of American steel mills (carried out under the auspices of Truman’s own executive order outlining the action) as unconstitutional. Justice Jackson conceded that when the President acts pursuant to an express or implied grant of power from Congress s/he is acting at the full height of presidential power. However, when the President acts contrary to the express or implied will of Congress (as Truman had with his steel-mill seizure), s/he acts in a manner clearly outside the President’s constitutional authority. In the middle lies a “zone of twilight” where Congress has neither granted nor denied presidential authority (as, for example, when Congress implicitly endorses a diplomatic position but has not passed laws stating how that policy ought to be enforced). In the “zone of twilight”, the proper distribution of power between Congress and the President remains uncertain. “In this area,” Jackson cautioned, “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.”[5]

The history of EOs, from Washington’s neutrality proclamation to President Trump’s travel bans, appears to bear out Jackson’s prediction. Sometimes, presidential action in the “zone of twilight” goes unchallenged or eventually receives congressional authorization; other times, legal challenges or political backlash check this exercise of presidential power. Just as the scope of executive power remains subject to debate, so too does the validity of EOs issued in the “zone of twilight”.

Executive Orders, Presidential Proclamations, and Executive Action: What’s the Difference?

EOs do not trigger every “zone of twilight” presidential action. For example, Abraham Lincoln announced the emancipation of slaves in Confederate states via the Emancipation Proclamation (not the Emancipation Executive Order), and the Obama administration enacted the DACA and DAPA programs through a series of agency memoranda which were announced to the public via press conference. It seems that the decision to announce executive action as an EO rather than through a free-form inter-executive missive (a 1974 Senate Report alleges that early executive action “sometimes took the form of hastily scribbled Presidential endorsements on legal briefs or upon the margins of maps”[6]) turned simply on the earliest Presidents’ determinations as to whether the action in question was the sort that merited formal announcement.

The first effort to delineate and publicly track EOs as a specific category of executive action came in 1907, when the Department of State numbered and published the executive orders and proclamations it had on file, starting with an order of President Lincoln’s from October 20, 1862, that had established military courts in Louisiana.[7] The numbering system was thenceforward used to catalog new EOs and Proclamations as they were issued.[8] In 1935, Congress passed the Federal Register Act, which requires that all EOs and proclamations be published in the Federal Register.[9] The Act was motivated, at least in part, by the flood of executive orders the Roosevelt administration had issued in the course of rolling out New Deal programs.[10]  While the publishing requirement established a congressionally-mandated method for publicly cataloging EOs, nothing requires the President to issue any of his directives as EOs. If this is the case, what motivates a president to initiate executive action through EO rather than another medium? Why did President Trump enact his travel ban via EO, rather than some other executive mechanism?

The answer to this question appears to turn largely on where the President locates the source of legal authority for his or her contemplated executive action. The Obama administration’s decision to roll out DACA and DAPA via agency-wide memoranda, rather than via EO, signaled that these programs represented nothing more than an agency’s enforcement plan for current immigration law. While Obama came under fire for engaging in presidential lawmaking that went beyond any authority he held under the Constitution or federal immigration law,[11] many were willing to accept that these programs simply codified agency policy on the exercise of prosecutorial discretion. Had Obama declared this policy of prosecutorial discretion via EO, the EO’s legal grounds and inter-executive effect would be no different than the agency memos which initiated DAPA and DACA, but the President might have found himself subject to even stronger charges of executive lawlessness.

In comparison, President Trump’s travel ban was issued under authority of section 212(f) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(f), which states that the President “may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate” (emphasis added). Under the Trump administration’s theory of travel-ban legality, EO 13769 (and its follow-up, EO 13780) fulfilled the INA’s proclamation requirement and constituted a valid exercise of immigration authority delegated to the President by the INA.[12] But imagine the alternate universe where the INA doesn’t contain the proclamation requirement. In this alternate universe, President Trump could rely on a similar theory of statutory authority for the travel ban, but he would be free to enact the program through any mechanism of his choice—EO, inter-executive memo, perhaps even a presidentially-authorized tweet . . . While the EO often serves as a target to those critical of excessive presidential powers, the travel ban example highlights how it can be used by Congress as a tool for presidential accountability, a publicity requirement that prevents presidents from evading public scrutiny when enacting controversial policy.

More to Chew On

A lot more can be said about EOs, but including all that here would result in the Moby-Dick of blog posts. If you still find yourself puzzling over the ins and outs of EOs, we recommend reading “Executive Orders in Court,” a Yale Law Journal Note by Erica Newland that surveys executive order jurisprudence and analyzes the federal judicary’s inconsistent approach to EO interpretation. You might also want to check out “The President’s Enforcement Power,” a 2013 N.Y.U. Law Review article by Professor Kate Andrias, who served as special assistant and associate counsel to the president of the United States, and as chief of staff of the White House Counsel’s Office during the Obama administration. Professor Andrias discusses the various ways presidents of the modern era have influenced agency enforcement activity, including through the use of EOs. She acknowledges the constitutional issues embedded in such efforts and argues for greater enforcement coordination and disclosure to enhance the efficiency and accountability of the administrative state.

[1] Lily Rothman, 9 Executive Orders That Changed American History, Time (Feb. 6, 2017), http://time.com/4655131/executive-orders-history/.

[2] See, e.g., Thomas V. DiBacco, George Washington Had a Pen, but No Phone, for Executive Orders, Wash. Times (Aug. 14, 2014), http://www.washingtontimes.com/news/2014/aug/14/dibacco-the-first-presid…

[3] For further historical background and a helpful discussion of the political and legal issues surrounding Washington’s neutrality proclamation, see Gary J. Schmitt, Washington’s Proclamation of Neutrality: Executive Energy and the Paradox of Executive Power, 29 Pol. Sci. Reviewer 121 (2000).

[4] Id.

[5] Youngstown, 343 U.S. at 637 (Jackson, J. concurring).

[6] S. Rep. No. 93-1280, at 2 (1974).

[7] Id.

[8] Id.

[9] See 44 U.S.C. § 1505.

[10] Id. at 2-3.

[11] See, e.g., Good Riddance to DAPA—but DACA Should Be Next, National Rev. (June 16, 2017, 7:00 PM), http://www.nationalreview.com/article/448731/dapa-immigration-order-trump-rolls-back-obamas-executive-action (referencing the Obama administration’s “lawlessness” in enacting the DAPA and DACA programs).

[12] The Ninth Circuit disagreed. See Hawai’i v. Trump, 859 F.3d 741, 782 (9th Cir. 2017) (concluding that President Trump’s second travel ban was properly subject to a TRO, as plaintiffs had established, inter alia, a likelihood of success on the merits that the travel ban was outside the President’s authority under the INA and, citing Justice Jackson’s Youngstown concurrence, classifying the travel-ban action as being at the “lowest ebb” of the President’s executive power).

Decisions about class certification and arbitration have depressed private enforcement class actions, reducing deterrence and enforcement of important substantive rights. Until now, the consequences of these procedural decisions for the separation of powers have not been well explored. An aggressive Supreme Court and an inactive Congress have increased the importance of federal administrative law—for example, administrative attempts to regulate arbitration. Moreover, a reduction in private enforcement compounds the importance of public enforcement. State and federal enforcers may piggyback on (successful or unsuccessful) private suits, and they may employ new tactics to maintain deterrence. While proponents of a robust regulatory state may take solace in these executive rejoinders, they are not without costs. Specifically, executive action may be less transparent, less durable, and more susceptible to political pressures than its alternatives.

In Response to: Of Constitutional Custodians and Regulatory Rivals: An Account of the Old and New Separation of Powers

This Essay responds to Jon Michaels’s argument for a form of agency fragmentation called the new “administrative separation of powers,” a structure consisting of three fundamental sets of actors: agency heads, civil society, and the civil service. According to Michaels, his thought-provoking idea has roots in the traditional separation of powers among the branches of government. Michaels also claims that these three intra-agency actors are able to maintain a “self-regulating ecosystem” that allows agencies to improve their functions similarly to the way that the constitutional checks and balances sharpen the operation of the political branches.

For Michaels’s tripartite agency to be legitimately characterized as a form of separation of powers, however, there must be a meaningful connection between the two frameworks. As of now, the analogy is hindered by some essentials aspects in which Michaels’s agency players do not reflect the three branches of government. These include, for example, each administrative stakeholder’s relative inability to protect its own jurisdiction from encroachment by the others and constraints on agencies’ capacity to further rule of law values. These limitations render constitutional separation of powers principles less valuable to the development of Michaels’s theory, because they reduce the extent to which the tripartite agency might, in fact, behave like the political branches.

In addition, both the use of Michaels’s model for executive-checking purposes and the ultimate success of his theory’s overall execution depend on the extent to which they
are grounded in the concrete characteristics of agencies and the polity. Additional substantiation of Michaels’s tripartite could be furthered by analysis of the diversity
among agency heads and civil servants across the executive branch and of the weaknesses in civil society’s ability to leverage its interests vis-à-vis government officials. Those seeking to realize the promise of Michaels’s model should also consider the impact of differences in administrative, political and societal structures, orientations and incentives on Michaels’s framework.

Bijal Shah, Toward An Intra-Agency Separation of Powers​, 92 N.Y.U. L. Rev. Online 101 (2017).

In Response to: Of Constitutional Custodians and Regulatory Rivals: An Account of the Old and New Separation of Powers

This Essay responds to Jon Michaels’s claim, insightfully developed in his recent Article, that the administrative realm functions as a self-regulating ecosystem. Michaels’s claim rests on his description of a trio of administrative rivals that mirror the constitutional branches: The civil service manifests key rule-of-law qualities of the judiciary, agency heads mimic the partisan leadership of the presidency, and—of greatest interest here—civil society plays the “popular, deliberative” role of Congress. Michaels argues that this “administrative separation of powers” legitimates and appropriately constrains agency action. Further intervention by the constitutional branches, in his view, is generally unnecessary and destabilizing.

Michaels’s intriguing comparison between civil society and Congress raises important questions about the oversight function of each institution. I argue that substituting civil society for Congress runs the risk of replicating—and likely exacerbating—pathologies of inequality and exclusion that undermine oversight’s democratic value. Both Congress and civil society are prone to elitism and representational failures that fall short of constitutional ideals. Yet because their respective mandates, structures, and capacities differ, the two institutions are likely to perform better oversight in tandem than civil society could alone. Congressional oversight, I argue, may channel a different and somewhat more inclusive perspective than civil society alone. At the same time, civil society has advantages over Congress: It can give voice to political minorities, act more swiftly and decisively, and engage with agencies more consistently over time. Taking account of the flaws and attributes of each institution thus points toward a reorientation of Michaels’s model. Rather than casting the administrative sphere as self-regulating in isolation, we should focus on the complementary nature of the administrative and constitutional rivals.

Miriam Seifter, Complementary Separations of Power, 91 N.Y.U. L. Rev. Online 186 (2016).

On February 24, the Supreme Court will hear oral argument in Hughes v. Talen Energy Marketing. In deciding this case, the Court must determine whether an effort by the State of Maryland to incentivize the construction of new power plants is field preempted by the Federal Power Act (“FPA”)—that is, whether the Maryland law intrudes on an area that is exclusively the federal government’s to regulate.  This Comment urges the Court to evaluate Maryland’s regulation under a conflict-preemption, as opposed to a field-preemption, standard. In particular, the Court should clarify that field preemption—a doctrine that prohibits any state regulation in a particular area of the law—applies only when a State targets the core aspects of federal jurisdiction under the FPA, namely the Federal Energy Regulatory Commission’s (“FERC”) ability to determine whether a wholesale rate is just and reasonable.  Conflict preemption—which provides that state laws are preempted only when they interfere with or frustrate the federal regulatory regime—provides a far superior framework for evaluating the type of law at issue in Hughes.  It conforms more closely to the FPA’s core objectives, furthers important state policies, and somewhat paradoxically, enhances FERC’s ability to regulate effectively the aspects of the electricity sector under its jurisdiction.  Not only is a conflict-preemption approach good policy, it is also entirely consistent with the Court’s FPA preemption jurisprudence.  In particular, the Court’s prior decisions can be read to support a less intrusive field-preemption inquiry—a reading which, this Comment argues, should be applied the facts before the Court in Hughes.

Matthew R. Christiansen, FPA Preemption in the 21st Century, 91 N.Y.U. L. Rev. Online 1 (2016).