An EO is a written statement that the President issues and signs to “direct or instruct the actions of executive agencies or government officials, or to set policies for the executive branch to follow”. An EO has the same force as a law passed by Congress (unless it conflicts with an existing federal law).
It should be noted that there are two other types of executive actions, with which EOs are often confused: the memorandum and the proclamation. These are presidential acts which are similar to EOs (in that they have the force of law) but unlike an EO, which has to be signed and published, there is no formal procedure for a memorandum or proclamation.
According to the Congressional Services, there is no direct “definition of executive orders, presidential memoranda, and proclamations in the U.S. Constitution, there is, likewise, no specific provision authorizing their issuance.”
Historically, military operations have naturally been the area in which presidents have made the most use of EOs. The president, as commander in- chief of the armed forces, can use executive action to define military policy.
However, Article II of the US Constitution confers executive powers on the President, in effect the Commander-in- Chief, and stipulates that the President “shall take care that the Laws be faithfully executed.” In practice, therefore, EOs can cover a very wide range of public actions.
Executive actions allow the President to take decisions bypassing Congress. Every President since George Washington has used EOs in various ways. The emancipation proclamation by President Abraham Lincoln’s in 1863 is the most famous executive action1 in American history. EOs have become more controversial over time as presidents are using them in more and more new ways. The use of EOs has expanded to many areas. Lack of majority and increased polarization are pushing presidents to use EOs as a substitute for legislation. But this is nothing new: the use of EOs played a key role in the Civil Rights movement: Affirmative action and equal employment opportunity actions were taken by Presidents Kennedy and Johnson using EOs.
Donald Trump has been particularly active in this area but was not the most active in history; he issued 202 EOs in a single term, which is faster than the majority of American presidents since WWII (276 for Barack Obama in two terms, 291 for George W. Bush in two terms and 364 for Bill Clinton in two terms). However, Trump issued less than Jimmy Carter (320) in one term. And this figure is a far cry from the record held by President Franklin Roosevelt (3,271 EOs recorded between 1933 and 1945) under exceptional circumstances (crisis and war); and still far below the levels achieved by some other presidents: Theodore Roosevelt (1,081), Woodrow Wilson (1,803), Herbert Hoover (968), Harry Truman (907).
However, Donald Trump’s use of EOs was particularly criticized as it allowed him to reconfigure (in peacetime) the entire US trade policy, in particular to strengthen his electoral base. A use far removed from the spirit of the constitution.
Executive Orders can cover a very wide range of public actions and are in practice rarely repealed.