Critics call them "legislation by other means." Supporters defend them as a necessary tool for leading the country "“ especially in the face of a Congress unwilling or unable to make tough choices. Whatever your position, the Executive Order has been used by presidents for good, for ill, and sometimes for just plain odd reasons.
Article II, Section 1 of the U.S. Constitution contains a vague reference to executive orders, giving the president the power to "take care that the laws are faithfully executed." Strict constructionists interpret this phrase to empower the president only to enact laws approved by Congress, but presidents have shown a remarkable mental flexibility to overcome this potential obstacle. Executive orders have covered every topic from school desegregation, to starting wars, to providing political supporters with cushy government positions.
These orders went largely unchecked until President Harry Truman signed Executive Order 10340, which placed all U.S. steel mills under Federal control. The Supreme Court ruled that Truman had overstepped his authority because he attempted to make law rather than clarify an existing piece of legislation. Justice Hugo Black, concerned that his majority opinion had offended the President (which it had), invited Truman over for dinner. Truman, overcome by the Justice's hospitality, remarked, "Hugo, I don't much care for your law, but, by golly, this bourbon is good."
Since then, presidents have exercised more restraint and usually cite specific laws when signing an Executive Order. Once signed, however, they carry the power of law and compel all U.S. citizens, agencies, and businesses to follow them.
Famous, Infamous & Ridiculous Executive Orders
You might have read about these executive orders in Mrs. Snodergrape's 11th grade history class. Unfortunately, Mrs. Snodergrape usually left out the most interesting tidbits.
Emancipation Proclamation: Perhaps the most famous of all executive orders, the Proclamation freed all slaves living in the Confederacy. (It did not, however, free slaves in the border states of Kentucky, Missouri, Maryland, Delaware, and West Virginia "“ states that permitted slavery, but had not seceded from the Union.)
The Proclamation was actually President Lincoln's last attempt to bring the Civil War to a speedy close. His first desire was to save the Union, not to end slavery. In July 1862, Lincoln drafted a "Preliminary Emancipation Proclamation" that announced he would free the slaves in any territory still under rebellion on January 1, 1863. Theoretically, states that ceased hostilities and returned to the Union before that date could still practice slavery. Following the Confederacy's disastrous defeat at Antietam in September, Lincoln issued this preliminary Proclamation. He hoped that the defeat would convince the South they could not win the war, and as a concession to a quick surrender, they would be allowed to keep their slaves. The Confederacy did not surrender, so Lincoln issued his final Emancipation Proclamation on New Year's Day. Although it freed few slaves at the time, it did clarify a moral cause for the war and dashed any hopes of the Confederacy receiving support from France or Great Britain.
[WPA poster courtesy of the Library of Congress.]
Desegregation of the Armed Forces: In February 1948, a hopeful President Harry S. Truman sent Congress a 10-point proposal on extending civil rights to African-Americans. Included in that plan was a proposal to desegregate the military and phase out the all-black units dating back to the Civil War. He vastly underestimated the reaction of his fellow Democrats, who that July seceded from the Democratic Party and formed the Dixiecrat Party with Strom Thurmond as its nominee for president. Less than two weeks later, Truman issued Executive Order 9981, "[declaring it] to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion, or national origin." By 1953, 95% of all African-American service members had been integrated into previously all-white units.
Japanese-American Internment: "Tora! Tora! Tora!" The lead Japanese plane radioed to headquarters to indicate total surprise had been achieved at Pearl Harbor. The United States and Japan were at war; the nation was afraid and was convinced Japanese spies lurked everywhere. President Roosevelt signed Executive Order 9066, authorizing the detention of more than 110,000 Japanese-Americans. Taken mostly from the West Coast, approximately 60% of those interned were American citizens, denied the right of habeas corpus and torn away from their homes for the simple crime of having Japanese ancestry. A commission later determined that E.O. 9066 was the result of "race prejudice, war hysteria, and a failure of political leadership."
Indian Reservations: In 1851, Congress passed the Indian Appropriations Act, which empowered the government to remove, by force if necessary, Native Americans from their ancestral homelands to less desirable locations further west. This policy quickly took a back seat to the Civil War, but President Ulysses S. Grant created dozens of reservations. Some tribes went peacefully, while others, like the Sioux, waged a bitter fight. Eventually, over 300 reservations were created, most in extremely inhospitable areas that nobody else wanted.
What's the point of being President if you can't do a little bit of whatever you want to do? These executive orders have historians scratching their heads and saying, "huh?"
Patronage: Is that civil service exam too hard? Not a problem if you've got friends in high places. Presidents have frequently used executive orders to award jobs. Theodore Roosevelt seemed particularly fond of this hiring practice, doling out over two dozen jobs to clerks, engineers, doctors, and administrators. Of note, his Executive Order of June 23, 1904, appointed Dr. William L. Ralph as curator of the section of birds' eggs in the National Museum, and his E.O. of November 2, 1903, made Mrs. Roy L. Quackenbush a permanent clerk in the Post Office.
Torch Hunting: Back in the good ol' days, when men were men, those manly men liked to go hunting. At night. With torches. Apparently this was such a widespread epidemic in the Panama Canal Zone (then a U.S. possession) that it rose to the desk of President Woodrow Wilson. E.O. 1884 made the use of hunting with a "lantern, torch, bonfire, or other artificial light" a misdemeanor. Wilson apparently had a fascination with the day-to-day operations of the Panama Canal Zone; he signed executive orders covering hiring, anti-corruption efforts, telegraph and wireless services, and postal crimes. He also signed E.O. 2526, which forbade any persons of Chinese descent from entering the Panama Canal, punishable by a $500 fine and up to one year in prison.