{"id":5715,"date":"2026-01-27T19:19:06","date_gmt":"2026-01-28T00:19:06","guid":{"rendered":"https:\/\/students.bowdoin.edu\/bowdoin-review\/?p=5715"},"modified":"2026-01-27T19:19:06","modified_gmt":"2026-01-28T00:19:06","slug":"executive-orders-and-presidential-prerogative-a-look-at-an-historical-tool","status":"publish","type":"post","link":"https:\/\/students.bowdoin.edu\/bowdoin-review\/politics\/executive-orders-and-presidential-prerogative-a-look-at-an-historical-tool\/","title":{"rendered":"Executive Orders and Presidential Prerogative: A Look at An Historical Tool"},"content":{"rendered":"

Introduction<\/b>\u00a0<\/span><\/p>\n

Executive orders have gotten a lot of attention in the past ten months. They\u2019ve covered<\/span> everything<\/span><\/a> from drilling in Alaska to the names of major landmarks to missile defense shields. News outlets of all kinds name themselves the prime sources for constant updates and seesaw between the president and the courts. The volume of information is overwhelming, particularly when it takes time to understand each policy.\u00a0\u00a0<\/span><\/p>\n

Executive orders are not new. George Washington issued the<\/span> first presidential directive<\/span><\/a> in June 1789, when he requested that the heads of his executive departments \u201csubmit a \u2018clear account\u2019 of their affairs.\u201d The phenomenon of executive orders as ominous buzzwords is not new either. When an executive order by President Jimmy Carter froze Iranian assets in November 1979 during the hostage crisis, <\/span>The<\/span><\/i> Los Angeles Times<\/span><\/i> called the order \u201can extraordinary form of<\/span> economic warfare<\/span><\/a>;\u201d when President Harry Truman ordered the Secretary of Commerce to seize steel mills in 1952, the <\/span>Chicago Tribune<\/span><\/i> discussed the matter in its article \u201cSteel and Steal.\u201d But history has a tendency to get lost in generational turnover. This article stems from a desire to understand old politics inherited by new voters. It examines several significant executive orders issued in times of national crisis, and uses those cases to understand how this particular form of presidential authority functions.\u00a0<\/span><\/p>\n

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Executive Order? What\u2019s That?<\/b>\u00a0<\/span><\/p>\n

\u00a0<\/span><\/p>\n

Essentially, instructions and a shortcut. It\u2019s a published directive, signed by the president, that manages operations of the federal government and carries the<\/span> force of law<\/span><\/a> without requiring congressional approval. Executive orders have to be grounded in the Constitution or in a piece of congressional legislation. While the Constitution doesn\u2019t actually define executive orders or executive power, it instructs the president to \u201ctake care that the Laws be faithfully executed,\u201d which has been broadly interpreted as<\/span> permission<\/span><\/a> for executive orders. Congress can pass obstructive legislation or remove funding, but cannot simply overturn executive orders.\u00a0 They can also be challenged through court cases. Prior to 2017, litigants tended to wait for an agency to react to a president\u2019s order, and then challenged the agency\u2019s action. However, many lawsuits opposing post-2017 policies \u201cinvolve direct and immediate challenges to the legality of presidential orders, and they name the President himself as a defendant,\u201d according to the University of Chicago Law Review.\u00a0<\/span><\/p>\n

Laws can be hard to pass. Executive orders are easier. A dramatic increase in<\/span> political polarization<\/span><\/a> since the 1990s, noted by political scientist Andrew Rudalevige, combined with filibusters, make passing legislation difficult. The last six years of the Obama administration barely passed as many laws as the last two years of Truman\u2019s first term, a legislative session which Truman coined the \u201c<\/span>do-nothing Congress<\/span><\/a>\u201d at a 1948 campaign event despite its productivity compared to today. President Trump has appeared incredibly occupied by legislation in his second term, issuing a record high of 147 executive orders in his first 100 days, but a record low of five bills were signed into law in that same period, a discrepancy noted by the<\/span> Harvard Kennedy School<\/span><\/a>. Executive orders are a form of visible action, but are potentially impermanent, as they can be overturned by a displeased future president. <\/span>The<\/span><\/i> New York Times <\/span><\/i>reported that Trump<\/span> overturned 78<\/span><\/a> of President Biden\u2019s orders on the first day of his second term.\u00a0<\/span><\/p>\n

Opinions over what exactly an executive order can do have changed over time. President<\/span> Howard Taft<\/span><\/a> argued that the president only had powers specifically listed in Article II or legal statutes. President<\/span> Theodore Roosevelt<\/span><\/a> took a different approach, arguing that \u201cit was not only [the president\u2019s] right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws.\u201d This \u201cstewardship theory\u201d seems to have won; according to The Yale Law Journal, presidents since have often issued executive orders through<\/span> aggregated<\/span><\/a>, unnamed sources of authority.\u00a0\u00a0<\/span><\/p>\n

In periods of emergency, executive orders can be preferable to legislation given their<\/span> speed<\/span><\/a>. President John F. Kennedy echoed this idea in his campaign against the incumbent Dwight D. Eisenhower in 1960 by criticizing Eisenhower\u2019s lack of an executive order outlawing discrimination in public housing. Kennedy said, \u201cone<\/span> stroke of the pen<\/span><\/a> would have worked wonders for millions of [African Americans] who want their children to grow up in decency.\u201d\u00a0<\/span><\/p>\n

Beyond these presidential beliefs, public opinion can also generate or negate a crisis. Consistent with Roosevelt\u2019s stewardship theory is John Locke\u2019s concept of the<\/span> prerogative<\/span><\/a>, a leader\u2019s \u201cpower to act according to discretion, for the publick good, without the prescription of the law,\u201d articulated in his <\/span>Second Treatise of Government <\/span><\/i>and influential over America\u2019s foundational legislators<\/span>.<\/span><\/i> The parameters of using such power include: a true emergency; a lack of legislative or other alternatives; the consent of the governed; and the benefit or interest of the people. Public favor can encourage<\/span> ex-post delegation<\/span><\/a> by Congress, which legalizes official action unauthorized when taken. Likewise, if the public believes an executive order does them more harm than good, protests can encourage successive legislation to revoke some presidential authority.\u00a0<\/span><\/p>\n

\u00a0<\/span><\/p>\n

Internal and Political Crisis Leads to Executive Order No. 11063<\/b>\u00a0<\/span><\/p>\n

\u00a0<\/span><\/p>\n

Kennedy\u2019s predecessor, Eisenhower, passed the Civil Rights Act of 1957, and signed Executive Order No.<\/span> 10730<\/span><\/a>, sending National Guard units to Little Rock, Arkansas to defend African American students trying to attend Central High School after <\/span>Brown v. Board<\/span><\/i>. However, there remained more to be done, as Kennedy articulated in his criticism.\u00a0<\/span><\/p>\n

Kennedy\u2019s \u201c<\/span>stroke of the pen<\/span><\/a>\u201d language followed him from his campaign into his presidency. After he was sworn in, the civil-rights groups that had formed an important part of his base kept up pressure for legislation. The NAACP issued a brochure entitled \u201cThe Need for an Executive Order,\u201d and the National Committee Against Discrimination in Housing began a \u201cStroke of the Pen\u201d campaign, urging the public to send letters to Kennedy in support of an executive order, as well as pens with which the president could sign the order. At the federal level, the U.S. Civil Rights Commission equated the problem of racial discrimination in housing in the North with restrictions on voting rights in the South, and issued a report calling for an executive order to address the matter.\u00a0<\/span><\/p>\n

Part of what held Kennedy back was the dominance of conservative Southerners in congressional committees, competing with Democratic Party control in both houses. Kennedy hoped to create a Department of Urban Affairs and seek a non-divisive approach to ending housing segregation, but the requisite bill was defeated. On November 20, 1962, Kennedy signed Executive Order<\/span> 11063<\/span><\/a>, \u201cEqual Opportunity in Housing.\u201d It directed federal departments and agencies \u201cto take all action necessary and appropriate to prevent discrimination because of race, color, creed, or national origin\u201d in the sale or rental of property owned, operated, or funded by the federal government.\u00a0<\/span><\/p>\n

EO 11063 fits exactly within the conditions of the Lockean prerogative. The emergency of civil rights legislation was articulated by multiple groups, and Kennedy lacked legislative alternatives, as evidenced by his preliminary efforts and the divisions within Congress. While segregationists would likely have argued that the consent and benefit of the governed was absent, the civil rights groups that supported Kennedy\u2019s campaign argued otherwise.\u00a0<\/span><\/p>\n

EO 11063 also shows two ways the temporary effects of executive orders can be made permanent: subsequent legislation and additional executive orders. The<\/span> Civil Rights Act of 1964<\/span><\/a>, signed into law by President Lyndon Johnson, included protection against discrimination in federally assisted housing, and was strengthened by<\/span> Title VIII<\/span><\/a> of the Civil Rights of 1968, which prohibited discrimination in housing sales and rentals across most homes. Carter\u2019s EO<\/span> 12259<\/span><\/a> added gender to the list of social categories protected by Title VIII.\u00a0\u00a0<\/span><\/p>\n

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Internal and Economic Crisis Leads to Executive Order No. 12291<\/b>\u00a0<\/span><\/p>\n

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\u201cFor decades we have piled deficit upon deficit, mortgaging our future and our children\u2019s future for the temporary convenience of the present\u2026In this present crisis, government is not the solution to our problem; government is the problem\u2026The solutions we seek must be equitable, with no one group singled out to pay a higher price.\u201d\u00a0<\/span><\/p>\n

In his 1981<\/span> inaugural address<\/span><\/a>, Reagan claimed his intention was \u201cto curb the size and influence of the Federal establishment\u201d and restore economic equality through reduced government. On February 17, 1981, Reagan signed EO<\/span> 12291<\/span><\/a>, \u201cFederal Regulation.\u201d The order aimed \u201cto reduce the burdens of existing and future regulations, increase agency accountability for regulatory actions, [and] provide for presidential oversight of the regulatory process.\u201d The order required that the benefits of regulations had to outweigh their potential costs. It also required that every federal agency prepare a \u201cRegulatory Impact Analysis\u201d for \u201cmajor rules,\u201d regulations likely to have an annual economic effect of $100 million or more, or have significant adverse effects on competition and productivity.\u00a0<\/span><\/p>\n

Although EO 12291 worked to decrease management by federal agencies, it increased presidential involvement in the regulatory sphere.<\/span> Opponents<\/span><\/a> cited in the Journal of Law and Politics feared that EO 12291 \u201cviolated the constitutional principle of separation of powers by assuming congressional authority to dictate substantive policy criteria.\u201d The order gave supervisory authority to the director of the Office of Management and Budget (OMB). By 1970, OMB associate directors were integrated with the presidents\u2019 political advisers, and the overall director had become, as articulated by political scientist James Pfiffner, \u201ca<\/span> Deputy President<\/span><\/a> who exercises vital Presidential power,\u201d<\/span> heightening concern over extensions of executive influence. EO 12291 also drew wide criticism for its<\/span> reduction of public communications<\/span><\/a> during regulatory review, noted by the Congressional Research Service, potentially reducing the consent of the governed that Reagan had promised to restore.\u00a0\u00a0<\/span><\/p>\n

EO 12291 left an ironic legacy: working on deregulation and federal accountability by increasing presidential direction. President Bill Clinton\u2019s EO<\/span> 12866<\/span><\/a> gave the president the authority to resolve any disagreements between executive agencies and OMB during regulatory review. President Barack Obama\u2019s EO<\/span> 13563<\/span><\/a> directed federal agencies to periodically review significant regulations, notably stressing the need for public participation. President Trump\u2019s EO 13771, widely nicknamed the \u201c<\/span>one-in, two-out<\/span><\/a>\u201d order, yet again emphasizes cost-benefit analysis by requiring that executive agencies repeal two preexisting regulations for every new regulation passed. While this trend is changing under Trump, offloading legal responsibility meant that related lawsuits challenged new regulations instead of new executive orders, with regulations attracting more attention than the original orders.\u00a0<\/span><\/p>\n

\u00a0<\/span><\/p>\n

External and Political Crisis Leads to Executive Order No. 9066<\/b>\u00a0<\/span><\/p>\n

\u00a0<\/span><\/p>\n

Addressing a joint session of Congress on December 8, 1941, the day after Japan\u2019s attack on Pearl Harbor, President Franklin Roosevelt requested a<\/span> declaration of war<\/span><\/a>. It was granted that same day.\u00a0<\/span><\/p>\n

As war began, national leaders debated how to deal with concerns about the loyalty of Japanese Americans. The press picked up an unfounded claim from Secretary of the Navy Frank Knox that Pearl Harbor was planned by Japanese \u201c<\/span>fifth columnists<\/span><\/a>,\u201d sympathizers loyal to their home country. Press coverage combined with the suspicion of citizens on the West Coast created intense political pressure. Walter Lippmann, a highly influential journalist of the period, wrote in a February<\/span> 1942 piece<\/span><\/a> that \u201cThe Pacific coast is officially a combat zone,\u201d and that \u201cno one should be allowed to come and go until he has proved that his business is consistent and necessary with the national defense.\u201d While citizens fearing sabotage pushed for the relocation of Japanese within the U.S., there were scant reasons to do so.<\/span> Reports<\/span><\/a> from the Office of Naval Intelligence, the Federal Bureau of Investigation, and a commission chaired by Supreme Court Justice Owen Roberts all concluded that there was no reason to target Japanese living in the U.S. A March 1942 report found that less than half of interviewees from outside of Southern California favored internment of Japanese immigrants, and only 14 percent favored internment of Japanese citizens. Secretary of War Henry Stimson wrote in his diary that mass evacuation could \u201cmake a tremendous hole in our constitutional system.\u201d\u00a0\u00a0<\/span><\/p>\n

On February 19, 1942, Roosevelt chose to sign EO<\/span> 9066<\/span><\/a>, \u201cAuthorizing the Secretary of War to Prescribe Military Areas.\u201d Congress reacted favorably, approving a bill laying out the parameters of internment and penalties for defying the order. About 110,000 Japanese Americans, both immigrants and citizens, were restricted from leaving prescribed military areas. Four cases challenging internment made it to the Supreme Court. However, in each one, the Court ruled that the issues raised were constitutional. Curfews were justified by the risk of espionage and the conditions of war. Exclusion orders and initial detentions were deemed to be based on military necessity, not racism. While the Court stated that continued detention was unconstitutional, it ignored the constitutionality of internment itself, showing how the specific functions of executive orders require specific attacks to be derailed.\u00a0<\/span><\/p>\n

As public opinion on internment changed, so did related legislation. In 1976, President Gerald Ford issued a proclamation officially revoking EO 9066; Carter created a committee to recommend remedies for wrongs committed during internment; President George H.W. Bush\u2019s 1990 budget appropriated funds for reparations. While internment rightfully stirs up horror and grief today, in 1942, it was seen as an expedient response to a national crisis. Presidential orders and congressional statues since show how permanent legislation can overturn and counteract executive orders, but perhaps not fully undo their effects.\u00a0<\/span><\/p>\n

\u00a0<\/span><\/p>\n

External and Economic Crisis Leads to Executive Order No. 10340<\/b>\u00a0<\/span><\/p>\n

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In June 1950, the U.S. entered war with Korea. Defense production was rapidly mobilized\u2014the Department of Labor knew<\/span> industrial productivity<\/span><\/a> was critical to efforts overseas. In November 1951, the United Steelworkers union declared that such productivity would be interrupted; they planned to strike for better pay and working conditions when their contracts ran out at the end of the year. Negotiations ground on from December to April. The Truman Library records that workers wanted<\/span> wages<\/span><\/a> exceeding a national increase maximum, companies demanded a higher sale price for steel if they were to increase wages, and the federal Wage Stabilization Board and Office of Price Stabilization denied both. Hours before the strike of 600,000 workers, delayed until April 9, was to finally begin, Truman issued EO<\/span> 10340<\/span><\/a>, \u201cDirecting the Secretary of Commerce to Take Possession of and Operate the Plants and Facilities of Certain Steel Companies.\u201d \u201cAs your President, I have to think about the effects that a steel shutdown here would have all over the world,\u201d Truman said in a<\/span> national address<\/span><\/a> transcribed in <\/span>The New York Times<\/span><\/i>. \u201cIt is vital to our defense efforts\u2026It is vital to peace.\u201d He worked to explain the failure of negotiations up to that point, and why he had opted to use an executive order to try to motivate a settlement. Secretary of Commerce Charles Sawyer echoed Truman, saying, \u201cI dislike as much as anyone to witness, let alone participate in, the seizure of property. We are, however, facing a situation of great peril where continued production of steel is essential to our national welfare.\u201d\u00a0<\/span><\/p>\n

Truman and Wagner made clear that they acted under similar conditions to those understood by Roosevelt a decade earlier: the country and the world were in crisis, and a failure to act would compound that crisis. However, Truman was less successful in his exertion of wartime power. EO 10340 deliberately sidestepped the use of existing statutes and met a highly negative public reaction. The same<\/span> New York Times<\/span><\/i> issue reported that a \u201cstrike could have been prevented through the issuance of the eighty-day, no-strike injunction provisions of the Taft-Hartley Act,\u201d but Truman argued that \u201cthe Taft-Hartley procedure could not prevent a steel shutdown of at least a week or two\u201d given how long negotiations had already taken. Truman also avoided the<\/span> Selective Service Act<\/span><\/a> of 1948, which permitted him to take over a company not fulfilling a defense order placed by the government, out of concern over the act\u2019s ambiguity. EO 10340 was an attempt to force resolution of a months-long dispute. However, Truman violated the prerogative for issuing the order by working around existing statutes. The strike ensued a couple of months later, and continued for 53 days, proving that the seizure of steel mills prolonged the conflict rather than resolving it.\u00a0<\/span><\/p>\n

\u201cThe Public Loses\u201d \u2013 <\/span>The Washington Post<\/span><\/i>. \u201cAn Outrageous Abuse of Power\u201d \u2013 <\/span>The Los Angeles Times<\/span><\/i>. \u201cSteel and Steal\u201d \u2013 the <\/span>Chicago Tribune<\/span><\/i>. The media and much of the public seemed to believe that the grave danger was the seizure of private property, not the potential shutdown of the defense industry. In <\/span>Youngstown Sheet and Tube Co. v. Sawyer<\/span><\/i>, decided in early June, the Supreme Court ordered the Secretary of Commerce to return control of the steel mills to their owners. The majority opinion noted that in debates over the Taft-Hartley Act, Congress had rejected government seizure powers as part of the law. The order was also declared<\/span> unconstitutional<\/span><\/a> because sanctioning the seizure of property to promote production is a legislative power, which the executive branch can enact but not claim as its own power.\u00a0<\/span><\/p>\n

\u00a0<\/span><\/p>\n

From These Cases: What Are the Limits? <\/b>\u00a0<\/span><\/p>\n

\u00a0<\/span><\/p>\n

Executive orders issued in times of crisis should not be considered reflective of every order ever issued. However, they can reveal what presidents believe to be the limits of their power, and reasons that such power might be challenged or confirmed.\u00a0<\/span><\/p>\n

Kennedy\u2019s EO 11063 and Truman\u2019s EO 10340 show the necessity of presidential patience before issuing an executive order. If Congressional statues exist to address the same issue as an executive order, they should be employed first, even if their resolution is slower and more complex. EO 11063 shows how much public opinion can influence the perceived need for an executive order, and EO 10340 shows just how quickly the same public opinion can combat an order. The greatest possible benefit of the public, while sometimes uncertain, should take precedence over sensational public opinion for informing executive orders. Issues of \u201cnational defense,\u201d while clearer to the president and their staff, might provoke a less informed public. The next president perhaps overturns orders more commonly than the courts, with the exception of extreme challenges to the boundaries of presidential power, as seen through EO 9066.\u00a0\u00a0<\/span><\/p>\n

There is far more literature on executive orders than can possibly be covered in one <\/span>Bowdoin Review<\/span><\/i> article. What this may hopefully provide, though, is a bit of perspective on an ever-evolving presidential power that helps to make sense of our current time.\u00a0<\/span><\/p>\n

\u00a0<\/span><\/p>\n

\u00a0<\/span><\/p>\n

\u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

Introduction\u00a0 Executive orders have gotten a lot of attention in the past ten months. They\u2019ve covered everything from drilling in Alaska to the names of major landmarks to missile defense shields. News outlets of all kinds name themselves the prime sources for constant updates and seesaw between the president and the courts. The volume of […]<\/p>\n","protected":false},"author":733,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_genesis_hide_title":false,"_genesis_hide_breadcrumbs":false,"_genesis_hide_singular_image":false,"_genesis_hide_footer_widgets":false,"_genesis_custom_body_class":"","_genesis_custom_post_class":"","_genesis_layout":"","footnotes":""},"categories":[20,25],"tags":[],"class_list":{"0":"post-5715","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-politics","7":"category-united-states","8":"entry"},"_links":{"self":[{"href":"https:\/\/students.bowdoin.edu\/bowdoin-review\/wp-json\/wp\/v2\/posts\/5715","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/students.bowdoin.edu\/bowdoin-review\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/students.bowdoin.edu\/bowdoin-review\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/students.bowdoin.edu\/bowdoin-review\/wp-json\/wp\/v2\/users\/733"}],"replies":[{"embeddable":true,"href":"https:\/\/students.bowdoin.edu\/bowdoin-review\/wp-json\/wp\/v2\/comments?post=5715"}],"version-history":[{"count":0,"href":"https:\/\/students.bowdoin.edu\/bowdoin-review\/wp-json\/wp\/v2\/posts\/5715\/revisions"}],"wp:attachment":[{"href":"https:\/\/students.bowdoin.edu\/bowdoin-review\/wp-json\/wp\/v2\/media?parent=5715"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/students.bowdoin.edu\/bowdoin-review\/wp-json\/wp\/v2\/categories?post=5715"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/students.bowdoin.edu\/bowdoin-review\/wp-json\/wp\/v2\/tags?post=5715"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}