An executive order is a signed, written, and published directive from the President of the United States that manages operations of the federal government. It has the same power as a federal law and is used to implement policies and make changes within the executive branch. There have been many executive orders issued by different presidents over the years. For example, during his presidency, Donald J. Trump signed 220 executive orders between 2017 and 2021[13]. Additionally, there are many unnumbered executive orders that have been issued throughout history[15].
Executive orders can be changed secretly. The President can secretly modify or revoke a published executive order. A bill introduced in the Senate aimed to prevent this practice[1].
“No one disputes that a President can withdraw or revise an Executive Order at any time,” said Senator Feingold. “That is every President’s prerogative. But abrogating a published Executive order without any public notice works a secret change in the law.”
“Worse,” he said, “because the published Order stays on the books, it actively misleads Congress and the public as to what the law is.” [10]
The shroud of secrecy extends to Executive Orders and other Presidential directives that carry the force of law. The Federal Register Act requires the President to publish any Executive Orders that have general applicability and legal effect. But through the diligent efforts of my colleague Senator Whitehouse, we learned last December that the Department of Justice has taken the position that a President can “waive” or “modify” any Executive Order without any notice to the public or Congress–simply by not following it. In other words, even in cases where the President is required to make the law public, the President can change the law in secret.
This is not just a hypothetical problem dreamed up by the Office of Legal Counsel. It has happened, and it could happen again. To list just one example, the administration’s warrantless wiretapping program not only violated the Foreign Intelligence Surveillance Act; it was inconsistent with several provisions of Executive Order 12333, the longstanding executive order governing electronic surveillance and other intelligence activities. Apparently, the administration believed its actions constituted a tacit amendment of that Executive Order. And who knows how many other Executive Orders have been secretly revoked or amended by the conduct of this Administration.[10]
Some common legal claims made against executive orders include challenges related to their constitutionality, legality, and adherence to existing laws. These claims can lead to executive orders being subject to judicial review and potentially declared unconstitutional by the court[6][7].
Citations
[1] https://fas.org/publication/secret_changes/
[2] https://bja.ojp.gov/program/it/privacy-civil-liberties/authorities/executive-orders
[3] https://www.americanbar.org/groups/public_education/resources/teacher_portal/educational_resources/executive_orders/
[4] https://www.govinfowatch.net/fact-sheet-1-reversing-or-revising-executive-orders-and-actions/
[5] https://sgp.fas.org/library/quist/chap_3.pdf
[6] https://guides.library.umass.edu/govinfo/exec/orders
[7] https://lawreview.uchicago.edu/print-archive/reviewing-presidential-orders
[8] https://www.yalelawjournal.org/note/executive-orders-in-court
[9] https://www.americanbar.org/groups/public_education/publications/teaching-legal-docs/what-is-an-executive-order-/
[10] https://fas.org/sgp/congress/2008/secretlaw.html
[11] https://www.americanbar.org/groups/public_education/publications/teaching-legal-docs/what-is-an-executive-order-/
[12] https://en.wikipedia.org/wiki/Executive_order
[13] https://www.federalregister.gov/presidential-documents/executive-orders
[14] https://constitutioncenter.org/blog/executive-orders-101-what-are-they-and-how-do-presidents-use-them
[15] https://www.presidency.ucsb.edu/statistics/data/executive-orders
