Every president (with the exception of William Henry Harrison) has issued executive orders. Most recently, Donald Trump issued several on his first day in office. Some have been published in the Federal Register, others are facing legal challenges.
So what IS an executive order? How do they differ from other executive actions, like proclamations or memoranda? Who writes them? Who reviews them? All that and more with our guest Andy Rudalevidge, professor of Government at Bowdoin and author of By Executive Order: Bureaucratic Management and the Limits of Presidential Power.
Click here for our episode on the Federal Register.
Here is a link to every single proclamation issued by a president.
Transcript
Note: this transcript is AI-generated and may contain errors
Nick Capodice: I want to do like a law and order intro to this with like the dun dun and all that.
Law and Order Voice: The episode you're about to hear.
Nick Capodice: But really folks, the episode you're about to hear contains information on executive orders. The guest for this episode was interviewed before President Trump's inauguration in January, and every single day since the inauguration has brought new executive actions and new lawsuits against those actions. For example, on January 28th, a two page memorandum [00:00:30] from the Office of Management and Budget ordered a freeze on all federal assistance programs, including all grants and loans. Among other things, this memo resulted in Medicaid portals being down in all 50 states. Now, a district judge in Washington, D.C. blocked the freeze later that afternoon. So it is temporarily halted until a hearing on Monday. The day before this episode comes out. So what this preamble here is trying to say is that [00:01:00] regardless of whether a branch of government complies with the rule of law or not, we at Civics 101 talk about the law and about the supreme law of the land, the Constitution. Yes, we make a lot of airbud jokes, but in the end, we refuse to say that laws and rules don't matter. Not because we wouldn't have a show and we wouldn't, but because we wouldn't have a democratic republic. Okay, here's executive orders.
Archival: Because you can [00:01:30] do an executive order, right? Well, you could do I want to I want to not use too many executive orders, folks. Because, you know, executive orders sort of came about more recently. Nobody ever heard of an executive order.
Archival: This first executive order that we are signing.
Archival: Today, I'm announcing two actions to respond to the demand of the American people for honesty in government.
Archival: Truman signs the proclamation putting the Atlantic Charter into effect.
Archival: Earlier today, I issued an executive order to strengthen our nation's commitment [00:02:00] to research on pluripotent stem cells, which.
Archival: We can authorize by executive action without a new act of Congress. Okay.
Nick Capodice: You're listening to Civics 101. I'm Nick Capodice.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And today we are talking about executive orders, what they say, what they do and what they can't say or do.
Hannah McCarthy: And we did just do an episode on President Donald Trump's orders from his first week back in office. You can listen to that before this episode, if you [00:02:30] like.
Nick Capodice: Or after, because then you'll know what they are.
Hannah McCarthy: Good point. All right. So let's get into it. What are executive orders?
Andy Rudalevige: So an executive order is simply an order by the president to the executive branch.
Nick Capodice: This is Andy Rudalevige. He's a professor of government at Bowdoin College, and he's the author of By Executive Order Bureaucratic Management and the Limits of Presidential Power.
Andy Rudalevige: It is a formal directive. Uh, it's different than other directives in that it is [00:03:00] required by law to be published in the Federal Register, but in general, it's one of a group of presidential tools to tell people within the executive branch what he wants them to do.
Nick Capodice: So first off, the executive orders don't require Congress. So they're a way that a president can push through laws that Congress might not be able to pass themselves. Relative to this is that the 118th Congress had the least productive session in modern history [00:03:30] from 2023 to 2025, passing fewer than 150 bills. Now, executive orders, on the other hand, have the force of law without the need for legislation, though there are a lot of restrictions which we're going to get into. But first, to get some stuff clear from the get go, executive orders are just one kind of executive action, right?
Hannah McCarthy: What are the other ones?
Nick Capodice: Well, for today's purposes, I want to talk about memoranda and also proclamations. We'll break down each of those in order. [00:04:00] And this is important because and it's not anybody's fault. These get mixed up all the time.
Andy Rudalevige: But executive action covers the whole gamut, including, by the way, appointments, pardons, anything really that Congress doesn't need to be involved in. But I think often too, though, if you read a news article, there's a lot of confusion about what is an executive order versus something else. A lot of things and even presidents will do this. They'll say, I issued an executive order to do a there is no executive order. It was maybe [00:04:30] a memorandum, or maybe it wasn't even that. Uh, and if you were to Google, uh, DACA, Deferred Action for Childhood Arrivals, right. A very famous executive action by President Obama. Uh, it was not an executive order, but if you Google it, that's what's going to come up. This executive order by President Obama, you know, millions of hits on that phrase. And that's just wrong, understandably wrong. Uh, but mistaken.
Archival: President Obama is in Nevada today after making his new immigration policy official. He signed two executive orders as he flew west [00:05:00] on Friday. Julianna Goldman is in our Washington bureau.
Andy Rudalevige: Interestingly, sometimes presidents take advantage of the confusion. Obama was being accused back in, say, 2014 of being, you know, a dictatorial. He was issuing way too many executive orders, and he actually put out a chart and said, no, I've issued very few executive orders. And it turned out that a lot of what his executive actions had been were either memoranda or, you know, as in the case of DACA, it was actually a departmental directive. [00:05:30]
Hannah McCarthy: All right. Caveat taken. Can we start with proclamation?
Nick Capodice: All right.
Nick Capodice: Proclamations. Quick note here. Proclamations and executive orders are published in something called the Federal Register. The Federal Register is a daily publication. It's printed in D.C.. We did an episode on it a very long time ago. Link in the show notes. So the Federal Register isn't just a thing that people who live in D.C. look at every morning to see, hey, what's going on in the government when an order is [00:06:00] published in it? This is an indication to an agency that this is the new law. This is the new official way things go. So the freeze on federal funds that I mentioned at the top of the episode, that was not published in the Federal Register, and some critics of the freeze have pointed out that the team of lawyers who work at the Federal Register would have addressed that it was an illegal impoundment. All that said, the Federal Register is fun to read. It's fascinating, and you can read it for yourself [00:06:30] for free at Federal Register. Gov. The more you know. Anyways. Proclamations.
Andy Rudalevige: A proclamation is literally to proclaim to the wider public what the president is going to do and sort of the state of the world often. Um, whereas the executive order, as I say, is to the executive branch, that doesn't mean that it doesn't have a wider impact than on the behavior of Of bureaucrats, but that is the, you know, specific audience for a given order. [00:07:00]
Hannah McCarthy: Our proclamations, usually just for lack of a better term, window dressing. You know, naming holidays and monuments and stuff like that.
Nick Capodice: Yeah, a lot of them are. Hannah, there have been over 9000 presidential proclamations. Also, I have a link to an archive of every single one of those in the show. Notes for you lovers of ephemera out there. And yes, most of them are, you know, President Carter declaring National Family Week or President Reagan proclaiming National [00:07:30] Dairy Goat Awareness Week.
Hannah McCarthy: Well that happened.
Nick Capodice: It certainly did. Oh, how that did happen, Hannah. Proclamation 5834. By the way, can I read you a paragraph from it?
Hannah McCarthy: I would love it.
Nick Capodice: Today, among the contributions of dairy goat farming to our nation's economy is an impressive array of dairy products. The interest of both domestic and foreign consumers in U.S. domestic goat cheeses or chevre continues to increase, as does awareness of all dairy goat products. [00:08:00] These trends deserve every encouragement.
Hannah McCarthy: I love that Reagan is giving everyone a little French lesson there, right? Just in case you didn't know, goat cheese is also called chevre.
Nick Capodice: You did that funny.
Nick Capodice: That said, I have to pivot here and say that not all proclamations are ceremonial in nature. There are a lot that have serious, immediate impact. President Donald Trump has issued five already in this new administration. There is one ordering flags [00:08:30] to be flown at full mast on Inauguration Day, for example. But in a more consequential vein, declaring a national emergency at the southern border and granting pardons to the January 6th insurrectionists. Those were both proclamations, and I'm sure we'll be hearing about them both for some time.
Hannah McCarthy: All right, moving on. What are memoranda? How is a memorandum different from an from an executive order.
Andy Rudalevige: An executive order is telling, using the president's authority to tell agencies to do something. [00:09:00] Whereas technically a memorandum is the president telling the agencies to use their own authority to do something.
Hannah McCarthy: So memoranda are the president saying, I maybe don't have the power to do this thing, but you do. So you take care of it for me.
Nick Capodice: Yeah. Memoranda do not have to be published in the Federal Register, by the way. So often the president just wants an end result. Right. But the intricacies of how all the other departments work, they're complicated [00:09:30] and nuanced, and the president can't dictate how it's going to happen. Exactly. But they're asking just to get something done.
Hannah McCarthy: Do you have an example?
Nick Capodice: I do. Trump has issued 15 memoranda so far. One of them is the memorandum on promoting beautiful Federal Civic Architecture. And in this memorandum, he is directing myriad other agencies to submit proposals to him to ensure that federal buildings, quote, should be visually identifiable as civic buildings [00:10:00] and respect regional, traditional and classical architectural heritage. End quote. Or we have the recent memorandum on return to in-person work. This is telling other agencies to terminate all remote work.
Hannah McCarthy: Just want to run all these back before we get into executive orders. Specifically, proclamations tell the American people and the world in general. I, the president, am going to do X, Y, and Z. And then the proclamations are published in the Federal Register, and memoranda are [00:10:30] I, the president, am telling other agencies to do XYZ, and these are not published in the Federal Register?
Nick Capodice: Absolutely correct.
Hannah McCarthy: All right. So let's get to the big one executive orders. When did they start? Have presidents been issuing them from the beginning?
Nick Capodice: Uh, yes and no. I'm going to tell you tell you a little bit about some of the earliest ones, along with who writes them and how they happen or don't happen right after a quick break.
Hannah McCarthy: But before that break, [00:11:00] if there is a special someone in your life you think could use a primer on every gear in the governmental machine, tell them to check out our book, A User's Guide to Democracy How America Works. It's the civics class we wish that we had had in eighth grade. It sure is.
Nick Capodice: We're back. We are talking about executive orders here on Civics 101. When a president delivers policy all on their own.
Hannah McCarthy: Nick, [00:11:30] for how long have presidents issued executive orders? Do they go back far enough to justify the horse and carriage sound effect?
Law and Order Voice: Yep.
Andy Rudalevige: There are no executive orders in the definitional sense going way back to George Washington. Um, but, you know, we don't have executive order number one from 1789.
Nick Capodice: Again, Andy Rudalevige, professor of government at Bowdoin College.
Andy Rudalevige: Sometimes these are written, you know, on scrap paper. Um, there's some fun research into, uh, how sometimes [00:12:00] they're written in the margins of memos or maps.
Hannah McCarthy: Maps.
Nick Capodice: Maps.
Hannah McCarthy: What was the first one?
Nick Capodice: Well, like Andy said, they weren't numbered officially for a while. So technically, Abraham Lincoln issued Executive Order number one, establishing a provisional court in Louisiana. But every single president before him, except for William Henry Harrison, issued them. They just didn't have a number. George Washington's first one was pretty funny. In 1789, [00:12:30] he wrote a letter to the heads of every department asking them for, quote, a full, precise, and distinct general idea of the affairs of the United States.
Hannah McCarthy: It sounds a bit like our show, doesn't it?
Nick Capodice: Sure does.
Andy Rudalevige: So they were, you know, not nearly as formal as they are today. And that was part of the problem at the time. We time. We get to the 1930s and the government's expanding. Franklin Roosevelt's issuing lots of these orders. You know, people needed to keep track of them. They needed to know who had been told what. And at some point, [00:13:00] the courts get involved and and sort of lambaste the FDR administration for, you know, not knowing what the law is and what the president has actually said about the law and how to implement it.
Hannah McCarthy: I want to know a little bit about how executive orders come to be. Like a president can't just order anything at all. They have to have authority to do it, right?
Nick Capodice: They certainly do.
Andy Rudalevige: So an executive order has to be something that the president is authorized to do, either by the Constitution or by a statute. [00:13:30] And so, you know, presidents are often, you know, sort of sending their lawyers out into the law books to find them, some authority that they can use to to do things. You know, finding new meaning in old laws has become quite a pastime for recent administrations, Illustrations, in part because there are so few new laws being passed.
Speaker16: And the problem with Washington, they don't make deals. It's all gridlock. And then you have a president that signs executive orders because he can't get anything done. [00:14:00] I'll get everybody together. We'll make great deals.
Andy Rudalevige: So congressional gridlock is sort of a great opportunity for presidents to try to act in ways that they, they feel won't be reversed because Congress finds it so hard to act.
Nick Capodice: The first line of an executive order usually lays that authority out. They often start with, by the authority vested in me as president by the Constitution and the laws of the United States of America, and by blah, blah, blah in the US code, I am ordering such [00:14:30] and such.
Andy Rudalevige: And then you'll have sections, perhaps setting out some definitions. So there could be a section setting up a new advisory committee and saying who's going to be on it and what kind of report they should issue. And or it may lay out. Here are some priorities for things we want the department to look at, um, and to come up again with actions that would achieve the goal of this executive order.
Nick Capodice: And since the authority is not an option, it's a requisite. There are a lot [00:15:00] of steps taken before the order is signed.
Andy Rudalevige: They do have to go through a process of both the central clearance process with regards to the Office of Management and Budget approving the order.
Hannah McCarthy: Real quick, we just have to say what is the Office of Management and Budget?
Nick Capodice: The Office of Management and Budget is a crucial piece in the puzzle of executive orders. They're the largest office working for the president. They help create a president's budget. They make sure executive actions are in line with Congress and the law. They [00:15:30] are the ones checking every single thing that comes out of the Oval Office.
Andy Rudalevige: Also has to be signed off for what's called form and legality by the Justice Department and the Office of Legal Counsel within the Justice Department usually does that. Um, so they'll look at it and make sure that the order is actually fine in terms of how it's been composed, but also legal that the president does have the authority to act in the way that he wants to act through this order. And sometimes [00:16:00] successive justice departments will have different ideas about what is allowed or not. Daca, as we mentioned before, is a pretty good example where the Obama Justice Department said, yes, you can do this. And the Trump Justice Department said, no, you can't. And Biden said, sure, you can go back with it.
Archival: Today, President Biden unveiled a new executive action that shields approximately 500,000 immigrants from deportation. It's aimed at Americans whose spouses or children are non-citizens.
Andy Rudalevige: And then often there's a deadline [00:16:30] for action. And, you know, some kind of reference, perhaps, to older executive orders that might be being superseded or even revoked as part of this one. So they can be anything from a paragraph long to 20 pages long.
Hannah McCarthy: So Nick.
Nick Capodice: Hanna.
Hannah McCarthy: Trump signed a lot of executive orders on his first day in office. And I've read them. Some of them are long and complicated. Some of them are short and to the point. [00:17:00] Uh, some of them cite countless legal codes and pieces of legislation and other executive actions over the last 250 years. I think it's safe to say that Donald Trump did not sit down and all by himself, type all of these out.
Law and Order Voice: No.
Nick Capodice: No one person can write an executive order in our modern era.
Hannah McCarthy: So who does write them?
Andy Rudalevige: I think the, um, executive orders themselves. We think of them as totally unilateral. [00:17:30] The president just sits down at the desk, pulls out the Sharpie, and we have a piece of policy. Um, normally there is a kind of a long review process of executive orders. And, you know, they can come from really anywhere, you know, in the executive branch or for that matter, outside the executive branch. And I'm sure, you know, if you're issuing a lot of orders on day one, you know, they're coming from, you know, transition staff or think tanks or people who've sort of written them out beforehand because you don't yet have [00:18:00] full access, you know, to the agencies in the federal government.
Nick Capodice: But to your question, Hannah, who wrote these recent orders, we don't have a name. The only name on these executive orders is that of Donald Trump. We do not know which think tanks or what teams of lawyers have been drafting them in the days leading up to the inauguration. I do have to point out here, though, prior to the election, the Heritage Foundation, which is a conservative think tank, they [00:18:30] published a massive document called project 2025, the subject of a three hour episode in the future, I'm sure. This was a blueprint for how to dramatically reshape American government to suit a suit a conservative agenda.
Hannah McCarthy: Which Donald Trump at certain times has denied knowing about at all.
Archival: I have nothing to do with project 2025 that's out there. I haven't read it. I don't want to read it purposely. I'm not going to read it. This was a group of people that got together. They [00:19:00] came up with some ideas, I guess. Some good, some bad.
Nick Capodice: However, a recent in-depth analysis by time magazine found that nearly two thirds of the executive actions Trump has issued so far mirror or partially mirror proposals from the 900 page document, ranging from sweeping deregulation measures to aggressive immigration reform. End quote.
Hannah McCarthy: Okay, so right now I'm thinking about the executive order to end birthright citizenship. [00:19:30] Um, a judge has already issued a pause on that order, has declared it unconstitutional. There are a bunch of lawsuits out against it. You know what happens when there are legal challenges to an to an executive order. Do we have any other examples of that?
Nick Capodice: We certainly do. We do not know what is going to happen with that particular executive order. But Andy had an example that bore a lot of resemblance to what we're seeing now.
Andy Rudalevige: The sort of exception that proves the rule is President Trump's [00:20:00] first travel ban order, the so-called Muslim ban from early 2017. You know, it's issued, um, you know, barely a week after the administration's come into office. It had not been reviewed at all, even by the Department of Homeland Security, which would have to implement it. And it was a disaster, right? It was, you know, there were people literally in the air and, you know, uh, immigration staff on the ground waiting to receive them. And they don't know what they're supposed to do.
Archival: American Civil Liberties Union says it will help people with valid visas [00:20:30] or refugee status who have found themselves detained in transit or at U.S. airports.
Andy Rudalevige: You know, if somebody comes in with a green card, are they allowed in? If they're from one of the countries that was banned in the order? That wasn't clear. Nobody had thought of that because, again, they hadn't asked the people who actually knew how to do it. So, you know, by the time that order gets around to the Supreme Court, it's actually been revised twice. It's been revised, uh, you know, by bureaucratic input. And the third version, which is actually a proclamation, not an executive [00:21:00] order, uh, has been shifted enough that the Supreme Court says, yes, this is legal. And they move ahead with that version.
Archival: The US Supreme Court has handed victory to President Trump by partially allowing his temporary ban on travelers from six mainly Muslim majority countries to come into effect.
Hannah McCarthy: Are executive orders generally popular? Nick like, do people like them?
Nick Capodice: I don't want to get into my whole hypocrisy. Doesn't matter to anyone diatribe [00:21:30] here, but I will say that people tend to dislike them when they or their party isn't in power, and when their party is in power, they're the best thing ever.
Andy Rudalevige: Donald Trump, Interestingly, you know, 2016 said that executive orders were a terrible way to govern. It was lazy. It was bad leadership. You should do everything through Congress. Uh, President Obama was using executive orders like they were butter, I think was the phrase.
Archival: Then all of a sudden, Obama, because he couldn't get anybody to agree with him, he starts signing them [00:22:00] like they're butter. So I want to do away with executive orders for the most part.
Andy Rudalevige: Well, it turns out everybody likes butter. Uh, you know, when President Trump came in, he, of course, issued lots of orders and after 100 days in office, issued a press release saying that he was the most effective president, uh, at least since Franklin Roosevelt. Why? Because he had issued more executive orders than anybody except Franklin Roosevelt in his first hundred days.
Nick Capodice: I want to go back to the butter metaphor one last time. Butter is easy. Butter [00:22:30] smooth. But if you're a person who works in a different.
Nick Capodice: Branch.
Nick Capodice: Or office, like Congress or the courts, even if you are lockstep in line with the president's agenda. That butter could be dangerous to your own power.
Andy Rudalevige: I mean, a lot of this will come down to the Congress having the sort of institutional pride in some ways to take action when the president is stepping on their turf and war powers, immigration, [00:23:00] uh, tariffs. Right. The economy, international trade. That's specifically a congressional power under the Constitution. It's one of those areas where power has been delegated over time to the president. Doesn't mean it couldn't be taken back. Uh, and we'll see, I guess, whether Congress, even a Republican Congress is interested in, you know, taking back some of the authority that it's kind of gifted to the president over time. [00:23:30]
Speaker20: That's executive orders for today. This episode was made by me Nick Capodice with you Hannah McCarthy, thank you. Christina Phillips is our senior producer, Marina Henke our producer, and Rebecca Lavoie our Executive Producer. Music in this episode from epidemic sound, HoliznaCCO, Hanu Dixit, Broke for Free, Blue Dot Sessions, Cycle Hiccups, and the man whose music is more like a gentle brown rice oil than butter, Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio. [00:24:30]