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Executive Orders Explained

Posted By Cindy Hesch, Friday, March 24, 2017

Executive Orders Explained

It has become inescapable to consume any sort of media and not hear, read, or watch coverage of President Trump’s Executive Order signings and/or protests of them.  Without delving into the political side of the discussion, just what are Executive Orders (political wonks often refer to them as EOs) and how can they affect you and your human resources policies?  In short, Executive Orders are legally binding orders signed by the President to Federal Administrative Agencies (IRS, EPA, Department of Labor, etc.)  These orders are usually issued to direct these agencies in their execution of established laws or policies.  Executive Orders do not require Congressional approval and have the same legal weight as laws passed by Congress.

Unlike Men, Executive Orders Are Not Created Equal

The term Executive Order is kind of a catchall for several ways the Executive branch (i.e. the President) can issue direction or even modify laws passed by Congress.

·         Executive Order—this is a numbered, legally binding document signed by the President.  In every respect it is essentially legislation and published in the Federal Register.  If you have been following recent developments, then you know that an EO can “trump” Congressional legislation somewhat or previously issued EOs from past Presidents.

·         Executive Memorandum—technically this isn’t a legally binding document; however, unless challenged in court they are binding upon the agencies that report to the President.  This is why the Department of Homeland Security would have to follow an Executive Memorandum on something like immigration as if it were law.  There is also the threat that the President can fire agency heads basically at will.

·         Signing Statement—these are accompanied by legislation the President is signing into law.  Oftentimes they are used to communicate Presidential intent to modify or handle something differently than what is outlined in the legislation being signed.  This is a legal gray area that has never been challenged, so until such time, they should be considered legal and enforceable by the President.

·         Proclamation—a statement or proclamation of intent that is not legal and generally used for things like pseudo holidays such as “National Bloggers Day” or maybe “Taco Tuesday”.

·         National Security Directives—these are concerned with national security or defense related issues; also known as Presidential Decision Directives.  Oftentimes, due to their sensitive nature, these are not made public.

Checks and Balances?

While it seems like a President can govern by fiat, nothing could be further from the truth.  The President’s authority to issue EOs can be found in Article II, Section 1 of the Constitution which grants the President “executive power”.  Furthermore, Section 3 of Article II directs the President to “take care that the laws be faithfully executed.”  Congress has several options to countermand or “check” EOs:

·         Rewrite or amendment to previous law, including spelling out in greater detail how the President must act.  The President then has recourse to veto the bill if he disagrees with it which Congress can override with a 2/3 majority.

·         Court challenges can also be pursued on the grounds that an EO deviates from Congressional intent or exceeds the President’s constitutional powers.  In general, courts, particularly the Supreme Court have granted deference in regards to EOs.

It is important to note that an Executive Order could not, for example, override the new overtime regulations that were scheduled to go into effect as they went through the complete rule-making process and were published to the Federal Register.  However, an EO could direct agencies to not enforce the new rules which could then be countermanded by Congress, a future President, or even a new rules making process.

So Executive Orders Impact Me?

Absolutely, yes, and most certainly.  While some of the more recent ones are still subject to court challenges and interpretation, the guidance issued in them—wide discretion on enforcing some aspects of the Affordable Care Act (ACA) for example can directly affect you and your HR policies.  Lately it seems like the past several Presidents have been using EOs more and more to bypass Congress or direct federal agencies on certain aspects of enforcement.  It remains to be seen if this trend will change; however, given the increasing polarization at the federal level, I feel pretty certain that the use of EOs will continue to increase quite possibly in a way that the Founders did not consider.

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