View the Executive Summary for this brief.
During President Joe Biden’s first two weeks in office, he signed 28 executive orders directing federal agencies to pursue specific actions and policies. While this number is noteworthy for the first few weeks of a presidency, “the reliance on executive action to drive policy changes is hardly new.”
President Barack Obama used the Environmental Protection Agency to issue regulations regarding greenhouse gas emissions when Congress did not pass legislation, and “adopted aggressive interpretations of existing statutes” to pass the Affordable Care Act. President Donald Trump declared a federal emergency to fund a border wall when Congress refused to grant appropriations, enacted travel bans, and also pursued regulatory action on drug pricing when Congress could not come to a legislative solution.
Over the past two centuries, “power has flowed increasingly to the Executive Branch,” resulting in presidential power defined not so much by the Constitution as by “the norms created over the course of two centuries of history.” By the mid-20th century, “growth of the administrative state,” and “the realization that Congress is ill-suited compared to the President to make timely responses to national security threats,” had bolstered presidential power. Today, this trend of ceding more power to the executive to allow the government to take quick action on behalf of the nation, and the trend of presidents holding on to expanded powers as time goes on to help them fulfill campaign promises, continues.
CBS’s John Dickerson explains the changes to the role of the presidency for Khan Academy (5 min):
Why it Matters
The framers had long debates regarding the powers of Congress; in comparison, there was a relative lack of attention given to the executive branch in the Constitution. The world and the U.S.’s role in it has changed dramatically since the time of the Constitutional framers. These changes “almost necessarily have led to presidents with more influence and control than the framers could have imagined.”
Understanding the structure of the executive branch, how the branch was outlined in the Constitution, and the responsibilities of each role is critical to understanding the scope of executive power and how it has changed since the founding of our government.
What is the Executive Branch?
The History Channel gives a quick overview of the executive branch (3 min):
The executive branch carries out and enforces the laws passed by Congress. It includes the President, Vice President, the Cabinet, executive departments, independent agencies, and some boards, commissions, and committees. The Cabinet and the federal agencies handle day-to-day enforcement and administration of federal laws.
All state governments are modeled after the federal government in terms of having an executive, legislative, and judicial branch. The executive branch in each state is headed by a governor, who is directly elected by constituents. Other prominent executive offices are established in State Constitutions. Of thirteen state executive offices most commonly found in the U.S., there are seven that appear in all fifty states: governor, attorney general, superintendent of schools, insurance commissioner, agriculture commissioner, labor commissioner, and public service commissioner.
Article II, Section I of the Constitution declares, “the executive Power shall be vested in a President of the United States of America.” This means that the President is the chief representative of the nation, often referred to as head of state, and is the leader of the federal government. Article II, Section II adds that the President “shall be Commander in Chief of the Army and Navy,” thus giving the President extensive military powers. Other Constitutional powers and responsibilities of the President include:
- Singing legislation into law, or vetoing bill enacted by Congress
- Negotiating and signing international treaties, which then must be ratified by the Senate;
- Informing Congress on the State of the Union (which has traditionally been done through the annual State of the Union address to a joint session of Congress);
- Appointing ambassadors, Supreme Court Justices, and “all other Officers of the United States” whose appointments are not specified by the Constitution (with consent of the Senate).
In order to be elected, a President must:
- Be at least 35 years old
- Be a natural born citizen
- Have lived in the U.S. for at least 14 years
A presidential term lasts four years. There were no term limits until the passage of the 22nd Amendment in 1951, which states a president cannot be elected more than twice.
Executive Office of the President
The Executive Office of President (EOP), originally created by President Franklin Delano Roosevelt in 1939, consists of the President’s immediate staff. The EOP communicates the president’s message and deals with high priority issues including the federal budget and national security.
The White House Chief of Staff oversees the EOP, and most members are appointed with full Presidential discretion (as opposed to appointments the President makes that must be confirmed by the Senate). This includes the Press Secretary’s Office, which “provides daily briefings for the media on the President’s activities and agenda,” and the National Security Council, “which advises the President on foreign policy, intelligence, and national security.”
- Council of Economic Advisors – provides advice on domestic and international economic policy;
- Council on Environmental Quality – coordinates federal environmental activities and development of environmental policy;
- Office of Management and Budget – oversees the performance of federal agencies and administers the federal budget;
- Office of the US Trade Representative – develops and coordinates U.S. international trade, commodity, and direct investment policy
Presidential directives, also known as executive actions, refer to the broad category of tools that a President has at their disposal to put policies into place. Executive orders are the best-known of these tools, but others include Presidential memoranda, proclamations, national security directives, and signing statements.
An executive order “is a signed, written, and published directive from the President of the United States that manages operations of the federal government.” Executive orders are “state mandatory requirements for the Executive Branch, and have the effect of law.” They allow the President to shape policy.
TED explains how executive orders work (5 min):
The U.S. Constitution does not explicitly address executive orders or define them as part of presidential authority. This authority has instead been established “as a matter of law and practice” and is considered “an inherent aspect of presidential power.” This does not make executive orders limitless; they only have the force of law if they are based on the powers vested in the President by the Constitution or delegated to the President by Congress. According to the 1957 House Government Operations Committee definition, “…an executive order that implements a policy in direct contradiction to the law will be without legal effect unless the order can be justified as an exercise of the President’s exclusive and independent constitutional authority.”
Executive orders are not legislation; as they do not require Congressional approval. A sitting President may overturn an executive order issued by a previous President by issuing another executive order that revokes, modifies, or supersedes the first executive order. As noted by George Mason University professor James Pfiffner, “Presidential candidates often promise to change policy with the ‘stroke of a pen,’” and for this reason, policies put into place by executive orders tend to lack finality.
Likewise, while Congress cannot necessarily overturn an executive order based on the President’s statutory authority, Congress may explicitly revoke the underlying statutory authority via legislation or pass legislation that makes carrying out the executive order difficult or impossible, such as removing funding. Congress can also codify an order it supports, or further modify it through legislation. For example, Executive order 13228, issued by President George W. Bush in October 2001, established the Office of Homeland Security, which was codified by the Homeland Security Act of 2002.
Sometimes the Attorney General reviews executive orders to ensure they are consistent with the powers granted to the President by the Constitution, but there are no formal procedural requirements for issuing an executive order. If there is a question of validity, the executive order is instead usually challenged in the courts. In 1952, the Supreme Court “established the framework for analyzing whether the President’s issuance of an executive order is a valid presidential action.” In order to withstand a successful legal challenge, an executive order must be issued either pursuant to the President’s Article II powers , or an explicit or implied authorization of Congress.
Other Presidential communications include proclamations, which communicate information on holidays, commemorations, and federal observances; and administrative orders, which include memos, notices, and letters meant to manage administrative matters of the federal government. All executive orders are published in the Federal Register, the daily journal of government activities.
The Vice President
The Vice President’s role is to support the President, and to take over the role of President if the President is for whatever reason no longer able to serve. A Vice President can be re-elected and serve an unlimited number of four-year terms under different presidents. The Vice President is also President of the Senate, whose job is to cast the deciding vote in case of a 50-50 tie.
The President’s Cabinet consists of advisors to the President, including the Vice President and heads of fifteen executive departments. The department heads are nominated by the President and confirmed by the Senate. Besides advising the President, the department heads also serve in the line of succession; after the Vice President, the Speaker of the House, and the Senate President Pro Tempore, the line of succession continues with the Cabinet offices in the order the departments were created.
The heads of the following departments are part of the Cabinet:
- Department of Agriculture (USDA): develops and executes policy on farming, agriculture, and food
- Department of Commerce: creates conditions for economic growth and opportunity, issues patents, and formulates telecommunications policy
- Department of Defense (DOD): protects national security, provides humanitarian aid and military forces, and performs peacekeeping and disaster relief services. It is the largest government agency by employment.
- Department of Education: “promote[s] student learning and preparation for college, careers, and citizenship in a global economy.”
- Department of Energy: advances the nation’s economic and energy security, including nuclear security, and funds scientific research.
- Department of Health and Human Services (HHS): the principal agency “for protecting the health of all Americans and providing essential human services,” including administering health insurance, overseeing research, and regulating food and drug safety.
- Department of Homeland Security (DHS): protects the nation by preventing and disrupting terrorist attacks; protecting critical infrastructure; responding to natural disasters; protecting the border; and regulating migration.
- Department of Housing and Urban Development (HUD): responsible for national policies and programs addressing U.S. housing needs, improving the nation’s communities, and enforcing fair housing laws.
- Department of the Interior: the principal conservation agency of the nation that manages 500 million acres of surface land, or about 20% of total U.S. land. It is responsible for protecting U.S. natural resources and wildlife, managing recreation opportunities and national parks, and honoring U.S. responsibilities to American Indians, Alaskan Natives, and Island Communities.
- Department of Justice (DOJ): responsible for enforcing the law and deterring crime, ensuring public safety, seeking “punishment for those guilty of unlawful behavior” and ensuring “fair and impartial administration of justice for all Americans.”
- Department of Labor: oversees federal programs for the American workforce, from job training and working conditions to employment discrimination and unemployment insurance.
- Department of State: develops and implements the President’s foreign policy; handles U.S. representation abroad, including maintaining diplomatic relations with 180 countries and international organizations; oversees foreign assistance and military training programs; counters international crime; and provides services to U.S. citizens and foreign nationals.
- Department of Transportation: ensures the safety, efficiency, and accessibility of the nation’s transportation, including highways, railroads, and air and maritime transportation.
- Department of Treasury: ensures the economic prosperity of the nation and safeguards the financial system by fostering financial stability; producing currency; disbursing payments to the public; and collecting taxes.
- Department of Veterans Affairs (VA): oversees benefit programs for veterans, their families, and their surviving dependents, including disability compensation, home loans, life insurance, rehabilitation, and medical care.
An executive agency “is a federal agency that is housed under the Executive Office of the President or one of the [fifteen] Cabinet departments within the executive branch.” The purpose of executive agencies is “to aid the President in carrying out the President’s constitutional and statutory responsibilities,” as well as to support specialized work within parent executive department agencies.
For example, the Department of Health and Human Services administers health insurance through the Centers for Medicare and Medicaid Services (CMS), oversees research through the National Institutes of Health (NIH), protects public health through the Centers for Disease Control and Prevention (CDC), and regulates the food and drug safety through the Food and Drug Administration (FDA).
The Department of Homeland of Security prevents and disrupts terrorist attacks through the U.S. Secret Service and the Transportation Security Administration (TSA); protects critical infrastructure through the Cybersecurity and Infrastructure Security Agency (CISA); responds to natural disasters through the Federal Emergency Management Agency (FEMA); protects borders through Customs and Border Protection (CBP), and regulates migration through Immigration and Customs Enforcement (ICE) and U.S. Citizenship and immigration Services (USCIS).
Independent agencies are those that are part of the EOP and are not under the fifteen main executive departments in the Cabinet. This does not make them any less influential, as many still deal with significant government operations, the economy, and regulatory oversight. These agencies operate with some degree of autonomy, which is why they are considered to be independent. Some are not required to report to higher officials within the executive branch, and some have a top official who has “cause removal protections,” meaning that the top official tends to be insulated from political interference and cannot be removed without valid reasons, such as neglect of duty or criminal action.
Examples include the Central Intelligence Agency (CIA); the Consumer Financial Protection Bureau; the Environmental Protection Agency (EPA); the Federal Reserve System; the Federal Trade Commission (FTC); the National Aeronautics and Space Administration (NASA); the Peace Corps; the Securities and Exchange Commission; the Social Security Administration (SSA); the U.S. Agency for International Development (USAID); and the U.S. Postal Service (USPS).
Boards, Commissions, and Committees
Sometimes, either Congress or the President establishes smaller organizations to manage more specific tasks that cover areas that do not fall under a parent agency. These include interagency councils, such as the Interagency Council on Homelessness, and a number of scholarship boards.
There are also what USA.gov refers to as quasi-official agencies. These are not officially part of the executive branch, but they are required by federal statute to release information about programs and activities in the federal register. Examples include the Federal Home Loan Mortgage Corporation (Freddie Mac) and Federal National Mortgage Association (Fannie Mae).
Congress & Executive Branch Agencies
The Constitution “neither established administrative agencies nor explicitly prescribes the manner by which they may be created,” but Congress does have the Constitutional authority to establish and shape federal agencies, including their powers, duties, functions, and funding. The First Congress used this power to create the Departments of Foreign Affairs, Treasury, and War.
Congress’s decisions on how an agency is structured affect how it operates, its independence, and its relationship with the Congress and the President. For example, Congress can choose:
- To make an agency freestanding, or place it within an existing department;
- To “structure agency leadership in the form of a multi-member commission or a single head;”
- The qualifications for, as well as tenure and removal of, agency officials.
Delegation of Authority
Generally, “an agency has only that authority which has been delegated to it by Congress.” This means Congress can control federal agencies by setting policy goals the agency must accomplish, or choosing what authority agencies have – such as whether an agency can issue legislative rules or enforce violations of law. These authorities can also be altered through Congressional legislation.
Congress’s power “to determine agency appropriations can be used to control agency priorities, prohibit agency action by denying funds for a specific action, or force agency action by either explicitly appropriating funds for a program or activity or withholding agency funding until Congress’s wishes are complied with.”
Congress “frequently enacts statutory provisions that require executive agencies and other federal entities to provide Congress or its committees with specified information.” Every year, federal entities submit thousands of reports, notices, and studies that can be divided into several categories:
- “notifications of actions or decisions;
- descriptive reports that summarize actions taken or provide other factual information;
- plans to accomplish particular goals; and
- studies or evaluations relations to a specific problem or concern.”
These reports allow Congress to:
- ensure “compliance with legislative intent,”
- gather data,
- monitor policy implementation,
- evaluate the efficiency and effectiveness of programs,
- and obtain recommendations for further legislative action.
The Scope of Executive Power
Article II of the Constitution states, “The executive Power shall be vested in a President of the United States of America.” Analysis from Cornell Law School explains there are two interpretations of this statement:
- The “President is head of the Executive Branch, but he is still subject to limits within that Branch.”
- The Unitary Executive Theory, which says that “any decision that the President makes regarding the Executive Branch would not be subject to any sort of review or oversight.”
According to Cornell, the Supreme Court has neither accepted nor rejected a specific view, leaving a somewhat gray area that in recent decades has generated much controversy around the role of the President. “Debates over the proper scope of executive power in the United States have been a feature of U.S. law and politics dating back to before the nation’s founding… but the post-9/11 presidency has been characterized as a striking expansion of executive power[.]”
Constitutional Law Professor Eric Posner of the University of Chicago Law School notes in this podcast from The National Constitution Center that throughout most of the 19th century, the presidency was generally a weak role, with some notable exceptions such as President Abraham Lincoln. This shifted considerably during the 20th century, when the U.S. became a global power in a more complex, industrialized, and urbanized world. The President’s role as head of state and representative of the nation expanded considerably as U.S. global influence grew at the beginning of the 20th century, from President Theodore Roosevelt’s acquisition of the Panama Canal to Woodrow Wilson’s decision to enter World War I and Franklin Delano Roosevelt’s management leading up to World War II.
Particularly with tensions overseas, Americans desired a centralized source of authority, and so the President became “the undisputed architect of U.S. foreign policy” by the early 1960s. The Constitution, which gave more power to the states and Congress, “had to give way so that a form of government could arise that would be adequate to these new tasks of regulating a national economy and of conducting foreign relations.”
In some cases, Congress gave enormous powers to the Presidency by statute. In other cases Presidents asserted power based on interpretations of the Constitution, which Congress and the Judicial Branch allowed. Together, this combination has vastly expanded the powers of the President over time, as well as the expectation of what a President can do in order to fulfill campaign promises.
The framers of the Constitution gave Congress the power to declare war, but gave the president the role of Commander in Chief. The general understanding based on this wording was that “the president could order the military to defend the country against attack, but that any sustained military action would require Congressional approval.” The nature of war has changed since the framers drafted the Constitution, and many have interpreted this to mean the president retains the power to “make” war, if not declare it, as evidenced by the number of times presidents have sent troops to battle without an official war declaration. President Harry Truman sent troops to Korea without a Congressional declaration of war; President Dwight Eisenhower relied on covert CIA operations; President John F. Kennedy was the primary decision maker regarding Cuba; and President Richard Nixon’s decision to bomb Cambodia during the conflict in Vietnam prompted Arthur Schlesinger’s now well-known description of “the imperial presidency.”
To scale back presidential power, Congress attempted to define when and how a president could send troops to battle with the 1973 War Powers Resolution. The War Powers Resolution was enacted over President Richard Nixon’s veto after the withdrawal of U.S. troops from Vietnam. The Resolution “provides that the president must consult with Congress when introducing U.S. forces into ‘hostilities.’” If Congress does not declare war or enact “‘specific statutory authorization’” to use force within 90 days, the intervention abroad must stop. Many argue the main issue with the War Power Resolution was that Congress never defined the scope of “‘hostilities,’” which has allowed Presidents to interpret it to mean anything short of all-out ground. Since the Resolution, Presidents have simply avoided applying the term to interventions ranging from peacekeeping to airstrikes.
After the September 11th, 2001 terrorist attacks, Congress reversed directions and gave more urgent executive powers to the President, with the Authorizations for Use of Military Force (AUMFs) in 2001 and 2002. The first “authorized force against ‘persons [who] planned, authorized, committed, or aided the terrorist attacks that occured on September 11” and the second provided similar authorization of force against the threat posed by Iraq under Saddam Hussein. According to Katherine Ebright at the Brennan Center, since their issuance the AUMFs have been used to justify military operations against groups that were neither involved in 9/11 nor connected to Iraq.
This is one reason why in September 2021 a bipartisan group of House Representatives introduced the National Security Reforms and Accountability Act, which seeks “to recalibrate the balance of power between the president and congress by reclaiming congressional oversight of arms sales, emergency declarations, and the use of military force.” For example, the Act would clearly define hostilities, and would require the president to publicly describe and justify authorized uses of force. The fate of the bill has yet to be determined.
As discussed in the Case Study above, recent presidents have relied on executive orders to compound and shape policy more frequently than their predecessors. Political historian Julian Zelizer of Princeton University argues in this podcast that the big institutional issue stemming from expansive executive orders is determining whether or not they are “a legitimate form of policymaking when you are dealing with big consequential decisions.”
This idea brings into question the legitimacy of executive orders in terms of checks and balances, discussed in the Presidential Directives section above. It also brings into question the stability and efficiency of executive orders as a policymaking tool. As explained by Dan Bosch at the American Action Forum, “If major policies are reversed each time the presidency changes parties, then the private sector has a diminished ability to make confident decisions on long-term investments, hurting the prospects of future economic growth.” Uncertain economic conditions tend to make for more volatile markets. The instability of executive orders as policymaking also negatively impacts the U.S. ability to address major challenges. Bosch cites research that has indicated regulating greenhouse gas emissions, for example, “is far more expensive than a legislative solution focused on carbon pricing, and not nearly as effective.”
At the federal level, if the job is to fall back to Congress, Congress could increase its staffing levels, which peaked in the 1990s and have fallen since. This would improve expertise and increase Congressional bandwidth to be more productive and proactive in making policy and setting agendas. Partisanship and polarization resulting in gridlock, however, can stymie any legislative endeavors, regardless of staffing.
Gene Healy of Cato Institute weighs in on the concept of the Imperial Presidency (3 min):
State and Local Level
Executive orders and powers similarly exist at the state level for governors (and the local level for mayors, although they have less sweeping powers than governors). In times of crisis (war, public health emergencies, inclement weather, etc.,) states authorize governors to declare a state of emergency, meaning executive powers expand until the emergency ends. This expanded power includes the powers normally reserved for legislatures, such as the ability to suspend existing statutes or effectively create new laws (although only temporarily). For example, at the start of the coronavirus pandemic, governors placed restrictions on businesses, public gatherings, and travel.
The state legislature still has an important role “in making sure these [gubernatorial] powers are not abused and that they do not undermine the separation of powers.” For example, statutes that define executive authority cannot be altered by executive orders; only legislatures “have the authority to legislate firm limits on emergency executive power.” State legislatures can also nullify emergency proclamations, or state laws may require legislative approval for an emergency to continue beyond a specified length of time. For example, in Alaska, a state of emergency cannot remain in effect longer than 30 days unless extended by the legislature. See your state’s emergency declaration statutes here.
The state judicial branch also has a role in ensuring the exercise of executive gubernatorial power is not so broad that it violates citizens’ constitutional rights or Supreme Court precedent. An example that emerged during the coronavirus pandemic is whether or not a state or local official has the ability to bar or quarantine individuals traveling across state lines, based on Supreme Court precedent that established the constitutional right to travel from one state to another. In most of these cases, judicial review has the last word.
America looks to the president as a central authority figure. But how much authority in the executive branch is the proper amount to make for a functional, efficient, and constitutional government remains an area of concern. Determining how the three branches can best share power and keep the government in balance will require accounting for both the Constitution and the necessities of the modern world.
Ways to Get Involved/What You Can Do
Measure: Find out more about the executive branch, at the federal and state levels.
- Do you know the current federal administration’s cabinet members?
- Do you know about executive branch offices and officeholders in your state?
- Who are the cabinet members in your state’s Governor’s office?
- What are your state’s laws regarding emergency declarations?
- See executive orders in your state.
Identify: Who are the influencers in your state, county, or community? Learn about their priorities and consider how to contact them, including elected officials, attorneys general, law enforcement, boards of education, city councils, journalists, media outlets, community organizations, and local businesses.
- Who holds positions in your state’s executive offices?
- What steps have your state’s or community’s elected and appointed officials taken?
- On which committees do your state’s representative(s) and senator(s) sit? Which agencies do they oversee?
Reach out: You are a catalyst. Finding a common cause is a great opportunity to develop relationships with people who may be outside of your immediate network. All it takes is a small team of two or three people to set a path for real improvement. The Policy Circle is your platform to convene with experts you want to hear from.
- Find allies in your community or in nearby towns and elsewhere in the state.
- Foster collaborative relationships with law enforcement, first responders, faith-based organizations, local hospitals, community organizations, school boards, local businesses, etc. and learn about the executive agencies that they may be interacting with on a regular basis.
Plan: Set some milestones based on your state’s legislative calendar.
- Don’t hesitate to contact The Policy Circle team, email@example.com, for connections to the broader network, advice, insights on how to build rapport with policy makers and establish yourself as a civic leader.
Execute: Give it your best shot. You can:
- Pick an agency at the state or federal agency that interests you
- Find out which Congressional committee oversees that agency’s operations and who the political appointees are that run it
- Find out what the measures of adequate performance and effectiveness are, and what the budget looks like.
- Familiarize yourself with your state’s laws regarding emergency declarations, and how these laws may have changed in recent years.
- Consider your past experiences when the governor of your state has declared a state of emergency.
- Consider your experiences with executive orders issued in your state during the coronavirus pandemic, and discuss these experiences with community members.
- Explore the Federal Register’s list of executive orders.
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