Presidential directive

A presidential directive, or executive action,[1] is a written or oral[note 1] instruction or declaration issued by the president of the United States, which may draw upon the powers vested in the president by the U.S. Constitution, statutory law, or, in certain cases, congressional and judicial acquiescence.[2] Such directives, which have been issued since the earliest days of the federal government, have become known by various names, and some have prescribed forms and purposes.[3] Presidential directives remain in effect until they are revoked,[4] which the president is free to do.[5] The classification of presidential directives is not easily done, as the distinction between the types can be quite arbitrary, arising from convenience and bureaucratic evolution,[6] and none are defined in the Constitution.[7] Furthermore, the different types may overlap.[8] As one legal scholar put it: "it is a bit misleading to overclassify presidential directives as comprising separate and distinct 'types' just because they have different headings at the top of the first page."[9] In terms of legal applicability, what matters is the substance of the directive, not the form,[4][6] unless a certain kind of directive is specifically required by relevant statute.[10]

Checks and balances

Presidential directives may be challenged in court or through congressional action.[11] Congress may revoke or modify a presidential directive, directly or indirectly, but only insofar as the directive is based on congressional legislation.[12] Direct repeal by congress is quite rare in modern times, because it may be necessary to override a presidential veto,[13] which requires an elusive two-thirds supermajority in both chambers.[14][15]

Executive order and presidential proclamations
President Donald Trump displaying Executive Order 13799
Main articles: Executive order and Presidential proclamation

Two of the oldest and best known directives are the executive order and the presidential proclamation.[16] In 1907, the State Department undertook to retroactively number executive orders and presidential proclamations.[17] The denomination of "executive order" was largely due to the fact that the first executive order they chose to number (from 1862) was titled "Executive Order Establishing a Provisional Court in Louisiana".[18] It was an imperfect exercise, however, and many directives were missed.[19] The Federal Register Act of 1935 required both executive orders and proclamations to be published in the Federal Register, with few exceptions.[20] The proper form and routing of executive orders and presidential proclamations has been governed since 1962 by E.O. 11030, as amended.[21][22]

The first presidential proclamation appeared in October 1789 declaring a day of thanksgiving[23] at the request of congress.[24] The use of executive orders also stretches back at least to 1789.[25]

Administrative order

The first directive called an administrative order appeared in 1940. Subsequent directives denominated as administrative orders have taken a variety of forms, and have sometimes overlapped with other kinds of presidential directives.[8] A researcher for the Congressional Research Service in 2008 found that in "general, indications are that, during at least the past 40 years, presidential directives published in the Federal Register in forms other than those of executive orders, or proclamations, have been denominated as administrative orders when reproduced in CFR Title 3 compilations."[8] These forms included: "delegations of authority, determinations, directives, findings, letters, memoranda, and orders".[8] A research guide by the National Archives defined administrative orders as "unnumbered signed documents through which the President of the United States conducts the administrative operations of the Federal Government" which "include but are not limited to memoranda, notices, determinations, letters, and messages".[26]

National security directive
NSDD 14, when it was partially declassified. The directive is now declassified in full.[27]
Main article: National security directive

Directives commonly known as national security directives have been issued within the National Security Council by every president since Truman in various forms,[28] involving foreign, military and domestic policies.[29] Generally, such directives are highly classified, are not required to be published in the Federal Register,[30] and are available to the public only after "a great many years" have elapsed.[31] Unlike executive orders, national security directives are usually directed only to the National Security Council and the most senior executive branch officials, and embody foreign and military policy-making guidance rather than specific instructions.[32]

Homeland Security Presidential Directive

Homeland Security Presidential Directives (HSPDs) appeared soon after the September 11 attacks, and are sometimes issued concurrently as a § National security directive.[33]

Selected list of HSPDs
  • The first such directive created the Homeland Security Council.
  • The second changed immigration policies to combat terrorism.
  • HSPD 5 directed the Secretary of Homeland Security to develop and run nationally coordinated emergency incident management systems.
  • HSPD-7 defines policy for protecting certain key infrastructure; the National Infrastructure Protection Plan was developed to implement the policy.
  • HSPD-8 directed Federal agencies to prepare in certain ways for emergencies.
  • HSPD-9 established policy to protect against attacks on food and agriculture.
  • HSPD-12 assigned responsibility for setting standards for the identification to be shown by persons entering federal government buildings.[34] The technical standard FIPS 201 was developed to satisfy this requirement.
  • HSPD-13 established a Maritime Security Policy Coordinating Committee from across federal government agencies.
  • HSPD-14 established a Domestic Nuclear Detection Office to coordinate efforts to protect the domestic U.S. against dangers from nuclear or radiological materials.[35][36]
  • HSPD-20 makes definitions and procedures for continuing the federal government after a catastrophic emergency. Federal agencies developed Continuity of Operations Plans in response to this directive.
  • HSPD-21, issued October 18, 2007, called for public and private healthcare organizations, hospitals, and healthcare facilities to form "disaster healthcare" system.
  • HSPD-23 defines cybersecurity objectives. It was secret at first. The National Cybersecurity Center began in response to this directive.

Presidential finding
Main article: Presidential finding

Presidential findings[note 2] are required by statute to be written and signed before covert activities are undertaken, and they must be reported to Congress as soon as possible, before the covert action in question has been initiated.[37] The finding must also be submitted to certain congressional committees.[38] Presidential findings, given their sensitive nature, are classified upon issuance.[39]

Presidential announcement

Presidents often make oral announcements which can be classified as presidential directives, such as Bill Clinton's inauguration of the National Performance Review on 3 March 1993. Although they are not included in the Federal Register, they are often recorded in the Weekly Compilation of Presidential Documents.[37]

Other directives
  • Presidential reorganization plans. First permitted by statute in 1939, these directives were used to reorganize the executive branch.[40]
  • Designations of officials. First appearing in 1941, these are used to designate individuals to hold specified official positions, and have also been used to delegate presidential authority.[41]
  • Letters on tariffs and international trade. These directives have appeared in the Federal Register from its first publication in 1936 to 1979. All but the last were addressed to the secretary of the treasury.[42]
  • Military orders. Twelve military orders were issued between 1939 and 1948. No such directives were published in the Federal Register until 2001, when George W. Bush issued a controversial military order on the detention, treatment, and trial by military tribunals of noncitizens alleged to be terrorists.[43][44]
  • Presidential certificates. Only one such instrument under that designation, from 1940, has appeared in the Federal Register, although there is evidence that similar certificates had been issued earlier.[45]
  • Regulations. Nine directives so designated were published in the Federal Register between 1939 and 1945, and most of them cited explicit statutory authority for their issuance.[46]
  • Presidential general licenses. Only one such directive has been published in the Federal Register. Issued shortly after the attack on Pearl Harbor in 1941, it permitted certain transactions which would otherwise be prohibited by the Trading with the Enemy Act.[47]
  • Presidential interpretations. Two presidential interpretations appeared in the Federal Register in 1942–1943, although they were not actually presidential directives, but rather interpretations of earlier ones.[48]

See also

Notes
  1. Some (but not all) sources limit the definition of a presidential directive to the written realm. See § Presidential announcement.
  2. Directives of the same name appeared in the Federal Register from as early as 1954, but for different purposes. See Relyea 2008, p. 12.

References
  1. Kessler, Glenn (31 December 2014). "Claims regarding Obama's use of executive orders and presidential memoranda". Washington Post.
  2. Gaziano 2001, pp. 6–7: "These ... actions were probably unconstitutional, but Congress acquiesced in the face of wartime contingencies, and the matters were never challenged in court."
  3. Relyea 2008, Summary.
  4. Moss, Randolph D. (29 January 2000). "Legal Effectiveness of a Presidential Directive as Compared to an Executive Order – Memorandum For The Counsel to the President". Department of Justice, Office of Legal Counsel.
  5. Chu & Garvey 2014, p. 7; Contrubis 1999, p. 19.
  6. Gaziano 2001, pp. 11–12.
  7. Chu & Garvey 2014, pp. 1–2.
  8. Relyea 2008, p. 4.
  9. Gaziano 2001, p. 11.
  10. Gaziano 2001, pp. 9–10.
  11. Relyea 2008, Introduction.
  12. Chu & Garvey 2014, p. 9; Relyea 2008, Introduction.
  13. Chu & Garvey 2014, p. 9.
  14. Henderson, Sara. "What Are Two Ways Congress Can Check the Power of the Executive Branch?". classroom.synonym.com.
  15. "Glossary: override of a veto". U.S. Senate. Retrieved 24 September 2017.
  16. Relyea 2008, p. 2.
  17. Relyea 2008, p. 6; Gaziano 2001, Note 45; Schmeckebier & Eastin 1939, p. 322.
  18. Relyea 2008, pp. 1, 6.
  19. Schmeckebier & Eastin 1939, p. 322.
  20. Relyea 2008, p. 3; Gaziano 2001, p. 11; [[#CITEREF|]].
  21. Gaziano 2001, p. 12.
  22. "Executive Order 11030 – Preparation, presentation, filing, and publication of Executive orders and proclamations". National Archives. 15 August 2016.
  23. Relyea 2008, p. 14.
  24. "Thanksgiving Proclamation". The Washington Papers. Retrieved 23 September 2017.
  25. Relyea 2008, pp. 5–6.
  26. "Presidential Documents Guide". National Archives. 15 August 2016. Retrieved 26 September 2017.
  27. "NSDD – National Security Decision Directives Reagan Administration". Federation of American Scientists.
  28. Dwyer 2002, Abstract.
  29. General Accounting Office 1988, Background.
  30. General Accounting Office 1992, p. 3; Dwyer 2002, p. 411; Relyea 2008, p. 9.
  31. Relyea 2008, p. 9.
  32. General Accounting Office 1992, p. 1.
  33. Relyea 2008, pp. 6–7.
  34. Homeland Security Presidential Directive 12: Policy for a Common Identification Standard for Federal Employees and Contractors. At Department of Homeland Security website.
  35. Homeland Security Presidential Directive – 14 description at Center of Army Lessons Learned web site, U.S. Army Combined Arms Center
  36. Text of HSPD-14 (same as NSPD-43) at Federation of American Scientists website
  37. Relyea 2008, p. 12.
  38. Erwin, Marshall Curtis (10 April 2013). "Covert Action: Legislative Background and Possible Policy Questions" (PDF). Congressional Research Service. p. 6. RL33715.
  39. Relyea 2008, p. 13.
  40. Relyea 2008, pp. 13–14.
  41. Relyea 2008, p. 5.
  42. Relyea 2008, pp. 7–8.
  43. Relyea 2008, p. 8.
  44. "Military Order of November 13, 2001 – Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism". Federal Register. Hosted by FAS.org.
  45. Relyea 2008, pp. 4–5.
  46. Relyea 2008, p. 15.
  47. Relyea 2008, p. 6.
  48. Relyea 2008, p. 7.

Sources

Further reading
  • Cooper, Philip J. (2014). By Order of the President: The Use and Abuse of Executive Direct Action (2nd ed.). University Press of Kansas. ISBN 978-0700620128.
  • Dodds, Graham G. (2013). Take Up Your Pen: Unilateral Presidential Directives in American Politics. University of Pennsylvania Press. ISBN 978-0812245110.
  • Mayer, Kenneth R. (2002). With the Stroke of a Pen: Executive Orders and Presidential Power (New ed.). Princeton University Press. ISBN 978-0691094991.
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