Well, hello. I’m Steve Bradbury, distinguished fellow at the Heritage Foundation, and I’m here to talk about executive orders and related presidential action documents. I served in the Trump administration in the Department of Transportation as the general counsel and acting deputy secretary, and I was responsible for carrying out requirements of presidential executive orders. During the Bush administration, I served at the Department of Justice, heading up the Office of Legal Counsel, where I was responsible for reviewing and approving the legality of presidential executive orders. In the eyes of many in the world, this every 4 year ceremony we accept as normal is nothing less than a miracle.

In America, we understand that a nation is only living as long as it is striving. Only a few generations have been granted the role of defending freedom in its hour of maximum danger. This great nation will endure as it has endured, will revive, and will prosper. Whether we go forward together with courage or turn back to policies that weakened our economy, diminished our leadership in the world, America’s future will be in your hands. So any discussion of executive orders needs to start with the president, the president’s duties and responsibilities under the Constitution, and so we need to focus a little bit on what those are.

So the president is the chief executive officer for the federal government, and in that role, he’s responsible for ensuring that the laws are correctly carried out. He also is responsible for supervising all of the subordinate officers within the executive branch, who are given authorities by Congress through statutes to run departments and agencies, for example. The president is responsible for managing the workforce of the executive branch, ensuring that its responsibilities are carried out properly and efficiently. The president also is the primary officer responsible for the national defense of the United States and for our foreign policy. President has some other duties under the Constitution, specific duties like the responsibility to ask for opinions from different officers within the executive branch and proposed legislation to Congress.

And then, the president may also be given statutory authorities of his own by Congress, or under treaties that have been ratified by Congress. So, the purpose of executive orders is a primary means by which the president exercises these authorities that he has under Article 2 of the Constitution or under statutes or treaties. The president is a creature created by the Constitution, not by statute. So the presidency, the president is not an agency of the federal government. President does not issue regulations such as an agency would do, and is not subject to the Administrative Procedure Act, which covers agencies and their rule making functions.

And the president’s senior assistants and advisors within the White House, Also, the White House does not constitute an agency, does not issue regulations. So the question is, how does the president carry out his functions? And the way he does it is through orders. He gives orders, directions to his subordinates. He sets the policy directions for his administration, tells them what the priorities are, and he does this through a variety of instruments.

The primary one is the executive order. So the function and purpose of an executive order really tracks the president’s authorities, duties under the Constitution and statutes. So the president may use an executive order, for example, to express his view on the proper interpretation of federal statutes, the correct policies to pursue where those statutes give the executive branch some discretion, some policy making flexibility. The president can identify which policies and directions he wants his administration to follow and give directions for doing that. The president can use executive orders to supervise the functions of subordinate executive officers who are acting pursuant to statutory authorities.

So, the head of a department or agency, responsibility of carrying out faithfully, but the president can supervise them in how he wishes to see them carry out those authorities. Important to realize the president himself cannot actually carry out those authorities because Congress has granted them, delegated them to the head of a department or agency created by statute. So the president is not superseding the authority of that subordinate officer, but is giving directions and supervising how he wants to see that authority carried out, a very important distinction. President also has wide authority to set performance standards and manage the performance of the workforce within the executive branch and can do that by executive order as well. Some executive orders relate to his foreign policy and national security functions.

He can give orders to the military, orders for national security purposes, require that officers within the executive branch, take act in certain ways, in certain arrangements that he thinks are important to advance, national security, and, other functions to help inform him on carrying out his his presidential duties. Important to realize some critical limitations on executive orders or really any other presidential action document. Executive the president does not have authority to make the law. That’s what Congress does, the legislative branch, under our constitution. And the president does not have authority to appropriate money, create budgets for the executive branch to spend money on different different things.

Again, that’s a function of Congress. Congress makes appropriations of money, creates budgets for agencies. So an executive order must be consistent with statutory requirements, cannot violate statutes, cannot supersede statutory requirements, and, must be carried out consistent with existing budgetary appropriations. President can’t create new budget authority. Also, of course, fundamentally, they have to be consistent with the constitution.

They have to flow from some legitimate exercise of the president’s, own authority. So it’s important to realize. They can affect private rights, as I’ll talk about further, and if they do affect private rights or individuals or companies who, believe they are negatively affected by some action taken under a presidential executive order, they may be subject to challenge in court. And, of course, Congress may respond to an executive order in different ways. Congress may like the president’s, arrangements that he’s created under executive order, and they might ratify them by statute and actually make them permanent through a new agency type structure that reflects what the president has, put in place under an executive order.

And Congress may also enact a budget for that activity to take place. And so in that way, actions that presidents take, directions they give under executive orders can sometimes, develop into permanent structures, frameworks within the executive branch for how the executive branch is gonna take action, and those frameworks may be supported by statutory laws, you know, laws passed by Congress, budgets, that are that are granted by Congress. So what is the format and structure of a typical executive order? It’s a fairly formal document. They tend to track the same general format, and that’s usually enforced by the Justice Department and by the Office of the Federal Register.

They usually start out with just a statement of authority. It’s the president’s constitutional authority and maybe some specific statute sometimes referenced. They usually then start out with the first section, which is a policy statement. This is the president’s statement of a policy for his administration, the reason for the executive order, the direction he wishes, his administration to take on on a particular issue. They may then include definitions of relevant terms that need to be defined for purposes of understanding the directions in the executive order, and then usually, they’ll have a series of directives, in the usual case given to principal officers within the president’s administration.

These are typically cabinet officers, heads of departments that report directly to the president. These are senior officers of the executive branch appointed by the president with the advice and consent of the Senate, and the president threw in the executive order is typically giving them directions for how to advance the policy that’s expressed in the executive order. Usually, these require these requirements can include things like, create certain arrangements or structures for decision making or review of issues. So the president may create a task force, may require interagency action among different departments for consultation on issues, reviewing issues, making proposals, recommendations. Oftentimes, the director of the Office of Management and Budget is then tagged with responsibility to follow-up and make sure that the departments and agencies carry out those requirements and report back to the president with any recommendations, formulating reports, etcetera.

And executive orders will typically include some boilerplate language saying that they don’t create rights for any person that are enforceable against the government, and it is usually the case that the issuance of the executive order itself is not subject to court review or approval. There is a process though that has come to be established and initially created by president Kennedy for the development approval of executive orders, and that’s typically followed. Again, they’re fairly formal, documents. So initially, the there’s a proposal for, an executive order that someone within the president’s administration or the president himself will come up with. Sometimes that’s from the top down.

The president himself or the very senior advisors to the president may have an idea for a policy that needs to be advanced, something that needs to be changed in the way the executive branch is carrying out its functions and duties, and they may propose, an executive order. Conversely, it may be bottom up. It may be an idea for an executive order that percolates up from a department or agency that has an interest in that subject matter and has identified a need for presidential direction or a desire for advancing presidential policy and effectiveness through an executive order. So the exec the executive order idea will be proposed and discussed among the, interested different, policy advisors or department heads, and then it will be assigned to the director of the Office of Management and Budget, OMB, to coordinate the development of the text for the executive order, the ideas and then ultimately the the text. Somebody is charged with drafting the first draft.

It may be somebody on the president’s domestic policy or foreign policy, team at the White House. It may be, an agency or department under the supervision of the secretary who prepares an initial draft. Then the director of the Office of Management and Budget will circulate that draft to all departments, agencies, and offices that may have an interest in the issue. And it goes through multiple drafts. It gets reviewed and approved by the director of the Office of Management and Budget.

Also, one of his subordinates, the director of the Office of Information and Regulatory Affairs, OIRA, and the general counsel within OMB. At that point, it will then go over to the justice department, and the attorney general has assigned to the office of legal counsel, which is headed up by an assistant attorney general, the responsibility for reviewing draft executive orders for form and legality. So OLC, as it’s called, will go through a a a process of vetting the executive order, reviewing all the relevant statutes, researching the law, making sure that the executive order could be carried out consistent with the law, that it is within the president’s authority, that it doesn’t require any additional legal action, it and that it is formatted correctly and correctly expressed or articulated consistent with the existing legal framework, so that it will be effective. And there’s a back and forth usually and some revisions made, and then OLC will issue a short, memo confirming that they’ve concluded the final version is consistent with the law. It it is approved for form and legality.

At that point, it will go OLC will share it with the Office of the Federal Register. Federal Register will review it for formatting, typographical errors, etcetera, so that it’ll be ready for publication in the federal register. It then goes to the staff secretary at the White House. The staff secretary then circulates it to all the senior advisors within the White House, domestic policy, foreign affairs, etcetera, whoever may be relevant to the issues, and they get a final review and approval. So, of course, changes can be made at the very in the final stages because it’s only at that point, typically, that the senior most senior advisers to the president are seeing the final version of a proposed executive order.

And so it may have to be shared again. Direction new directions may be given. People may have to go back to the drawing board. So it’s a process, a fairly formal process. At that point, the staff secretary will take the final approved version and present it to the president with any, relevant materials president needs to review for the president’s consideration and potential, signature.

Usually, at that point, the president knows it’s been coming, has been part of the discussions, may have even originated the idea or at least discussed it. And then, under established process and according to law, all executive orders are published in the federal register. So they’re available for the public to see, but they can become effective immediately. These are transparent documents by which the president is expressing his policy desires and giving directions to subordinates within the executive branch, and often presidents like to use executive orders as ways of publicizing their policy priorities and the way they like to think about issues and the solutions they are pursuing on particular issues. So quite quite frequently, an executive order is something of a PR document.

Now you’ve seen you can see if you go on the the, White House website, there’s a tab for presidential actions, and it’s all of the publicly available actions the president has taken, and it includes all the executive orders the president has signed. And lots of them are written, broadly with policy pronouncements and expressions of policy priorities, etcetera, as a PR way, if you will, of publicizing what the White House is doing and how the president and his team want to approach, particular issues. There are different effects that executive orders have and different ways they’re used. I’ve just described how they can be a PR document and really sort of encapsulate pronouncements about the president’s, priorities. And so that’s why you see sometimes in the opening days of a new administration, something of a flurry of executive orders.

When the president wants to set a tone, change direction from the previous administration. Some of these executive orders will include revocations of the previous president’s executive orders. President Biden, the current president, has been extremely active in doing that kind of thing. So if you go on the the the website I talked about, you’ll see all the executive orders listed in reverse chronological order. You go back to the beginning, you can see all the early ones that he issued trying to set a new tone different from the Trump administration.

Some of them are very long speaking pieces, administration. Some of them are very long speaking pieces, really PR pieces. A lot of them aren’t really doing anything. They’re expressing sort of his take, his view, his emphasis on things like, diversity, equity, and inclusion, DEI, big big executive order on that, and climate change, very long 23 page executive order touching on environmental justice, all kinds of climate issues. And a lot of these will give directions to agency heads in different departments and agencies to form task forces and to come up with ways of advancing these policies always consistent with their existing statutory authorities.

Again, the president can’t create new legal authorities in the way he would like to to see them exercised. So some executive orders are really mostly policy pronouncements or PR, but others can be very important for creating enduring frameworks for taking action within the executive branch. And so there’s some executive orders, which may be very temporary or impermanent because they really reflect the current president’s policy emphasis and priorities, and the and the following president may revoke all of those executive orders on day 1. An executive order can be fully revoked by a subsequent president. No president combined the following president with an executive order.

On the other hand, there are a lot of good examples of important executive orders that create structures that are very useful and that remain that persist and carry on from administration to administration. And in fact, some of those structures that are created by executive order may well be embraced by Congress. Congress likes to get in on the act on something good, a positive arrangement for carrying out, federal authority. And so Congress may, in effect, ratify what the president has created by executive order and make it permanent by statute and give it sometimes give that structure a budget. So there are some good examples of this.

For example, the Office of Management and Budget itself originally was created within the president’s team of senior advisors at the White House, and, you know, the the president cannot carry out his executive functions on his own. He needs a team of senior advisers and assistants. Congress doesn’t direct what those advisers and assistants do. Their their duties are defined by the president. Congress gives the White House a budget so the president can be assured of having those advisers and assistants in office around him, but the but Congress does not set out by statute what their specific duties are.

The president can do that by an order and an executive order, for example. And so by executive order, president originally created the Office of Budget within the White House to do budget analysis and assist the president in creating a proposed budget to present to Congress. Well, Congress liked this idea and didn’t want it to remain simply a function within the White House that was not subject to more public, transparency, for example. And so Congress institutionalized that office by statute. We now have the Office of Management and Budget, which is an agency within the executive office of the president surrounding, the White House.

So sort of the next ring out from the president, but it’s it’s an agency, and it has permanence, and it has functions, and it has a head who is now, confirmed by the Senate, nominated by the president, confirmed by the Senate. It is subject to the Administrative Procedure Act. It is subject to presidential to to, excuse me, to the Federal Records Act and to FOIA, for example, Freedom of Information Act. Those statutes that apply to agencies that do not apply to the president and the White House. Another example is the structure for cost benefit analysis of major rule makings within the executive branch, An idea originally created by executive order by President Reagan and then revised by President Clinton, and it carries on.

This is the cost benefit analysis, that agency rules, go through. A common a common analysis carried out by OIRA, the Office of Information and Regulatory Affairs within OMB, and, that’s pursuant to executive order 12866, famous executive order. It’s been revised multiple times. Unfortunately, the current president is proposing to make very significant changes in that process, which are really going to negatively impact the cost benefit analysis, and that would be something that a new conservative administration would certainly want to revisit. But Congress has recognized the importance and utility of that cost benefit analysis and has referred to that executive order, 12 866, multiple times through statute.

They created the Office of Information and Regulatory Affairs within OMB, which has a senate confirmed head. And so, again, by essentially statutory ratification, Congress has blessed that structure, which was created by, executive order. Another another example of this is what’s called CFIUS, the Committee on Foreign Investment in the United States, originally created by President Ford by executive order, and what this committee is, again, presidents cannot create new agencies or new legal authorities. The president tasked heads of major departments with getting together in a committee and reviewing the extent to which foreign governments, foreign powers, foreign entities were making investments into important businesses within the United States and to and to advise the president on whether those investments were creating national security risks or concerns that the president should address or should ask Congress, to address. That’s that was CFIUS, and he tasked the secretary of the treasury with the job of chairing the Committee on Foreign Investment in the United States.

Well, Congress again liked that idea, and more than a decade later, 1988, Congress enacted an amendment to the Defense Production Act, called the Exxon Florio Amendment that recognized CFIUS and gave it specific authorities, including authorities to recommend to the president that investments in businesses in the US by foreign entities that create national security risks could be blocked and gave the president the authority to block those investments. I think the president would say he already had that authority, but it was recognized by statute, by Congress. And subsequent to that, in several iterations, Congress has amended and given further authorities and expanded the authorities and functions of CFIUS by statute. So that’s just a good example of an entity, a structure that has permanence enduring value for carrying out authorities within the executive branch that was originally created by, executive order and has been respected and continued to be carried out by every president since, since, President Ford. I wanna stop and touch on some examples of other types of presidential action documents beyond executive orders, because there are multiple different types of instruments the president uses to give orders, directions, carry out his functions.

A more a less formal version, more informal is just simply a memorandum, a presidential memorandum. This does not have to be published in the federal register, although the president could ask that it be published. They will typically get posted again in that tab on the on the White House website for presidential actions. But a memorandum, presidential memorandum can look, a lot like an executive order, though it’s less formal. President will usually discuss policies and will direct it, sometimes giving directions, requiring actions to be taken out by subordinates.

Sometimes it’s just for people within the White House. Other times, it’s for cabinet members and others across the executive branch. So it can look and and feel, in in certain respects, quite a bit like an executive order, but just less formal. There are also proclamations, presidential proclamations. Sometimes these are just ceremonial, like declaring a, a week will will be, should be set aside to honor x, y, and z, or proclaiming that the flags of the executive branch will will be at half mast, half staff because of some something that has happened.

Proclamations can also be ways that the president exercises authority directly that he has that may be self executing that doesn’t require subordinates to follow-up with further actions, like proclaiming, making certain determinations of fact and proclaiming certain things to be established, like certain protected lands, for example. Other actions like that, certain, actions for purposes of foreign affairs. The president may also make declarations. Typically, these are pursuant to a statute that gives the president authority to declare, for example, an emergency if he makes certain facts determines that certain facts, are, are in place, and that is simply a declaration pursuant to that statute. And, certain things will follow then from that declaration.

There are also national security versions of executive orders. These typically will not get published in the federal register. Some of them may well be classified and not available publicly or broadly. These can take the form, for example, of a national security presidential directive, which looks a lot like an executive order, but addresses a national security concern, and that usually gets, managed. The process for developing the NSPD, will get, administered by the National Security Advisors office rather than the OMB director, though the OMB director may also review and be involved.

There are also presidential policy directives, which usually also address foreign affairs or national security matters. There are then military orders. President can give orders to the military to carry out that may have a different form and, again, get reviewed and circulated and approved through different channels. The most dramatic form of a military order is what’s called an execute order, which is when the president actually signs off on a military action. So those would obviously usually be classified and may not become public for many years after the until many years have passed after the president has left office.

So you just need to be aware that there’s a field of different types of instruments the president uses, also just letters to Congress or less formal, memos and things. Not all of these get posted on the White House website. Not all of them involve executive orders. Executive orders are just a subset, but there’s overlap here. There’s not a clear black and white delineation between when an executive order is used and when one of these other types of instruments may be used, and so it’s just good to keep that in mind.

The executive order is not, always clearly defined and as a distinct set of of, of documents though. Anything that is, take that does take the form of an executive order goes through that process, formal process I described and gets published in the Federal Register. Every president except one has issued executive orders in one form or another. They they’re all numbered. Not all there there is a numbering for executive orders.

The numbering system was created in 1907, and the first executive order number 1 was during the Lincoln administration. Don’t ask me why they decided that would be number 1 and why they didn’t start with George Washington, but George Washington did issue, in the form of a letter something that we would describe now as as an executive order. It it was issued in the 1st days of his first administration even before the Senate confirmed heads of the 3 departments were in place. He issued it to the temporary heads of those, three departments. Those departments were state, war, and treasury, and he simply asked them for their opinion on the state of the United States with regard to their areas of particular responsibility.

And so he was asking his heads of his first departments to tell him what they thought was the state of the US and what needed to be done so that he could potentially take action in the form of proposed legislation to Congress or what have you. So a classic example of an executive order, and he issued that his 1st month in in office in April of 17/89. Also, of course, Abraham Lincoln issued documents that were called proclamations but were essentially executive orders, like the suspension of habeas corpus. Under the constitution, it’s really Congress that has authority to suspend habeas if there’s an insurrection, for example. But president Lincoln took it upon himself to attempt to do that or to do that, essentially declare martial law and set up military commissions during the Civil War in those areas that were under insurrection or were not, complying with, with his orders and directions.

And, that was ratified by Congress later that year. They approved it by statute. President Lincoln also issued the Emancipation Proclamation. That was essentially a military order, but effectively a very famous, executive order. Later, you know, FDR, Franklin Delano Roosevelt issued many, many, in fact, more executive orders than any other president as you might expect, even more per year.

He was very, muscular in exercising presidential authority and during World War 2, during the Depression, etcetera. And, of course, a a a very negative example of an executive order was the Japanese internment order. Ultimately, it was upheld during the war by the Supreme Court. Today, certainly, it would be struck down as unconstitutional, obviously affecting the private rights of Japanese citizens. That would be challenged and today struck down as, as unconstitutional.

President Truman issued important executive orders. He desegregated the armed forces through an executive order, exercising his authority as commander in chief and the executive officer for supervising and managing the, the ranks within, the military services. So that was done by executive order. Famously, also during the Korean War, when there was a strike in the steel mills, president Truman issued an executive order directing the secretary of commerce to take control of those steel mills and ensure that they would continue to produce steel as needed for the war effort. Now that, executive order was challenged in court.

It went up to the Supreme Court, and that’s an example of a ruling from a court, the Supreme Court ultimately, that declared that the president did not have authority to direct the secretary of commerce to take those actions. It exceeded the president’s constitutional authority, and he did not have any authority by statute, to take out to take that kind of action. You’ll notice that that Supreme Court decision was Youngstown Steele and Tube versus Sawyer. It was not versus Truman. Sawyer, Charles Sawyer, was the secretary of commerce.

So it was directed at the commerce secretary who was actually carrying out the orders of, President Truman to to seize the steel mills. And, so this is consistent with the idea that, when agencies act or agency heads take action, that action under the Administrative Procedure Act or other rules and traditions is subject to, often subject to direct review in courts and challenging courts, particularly if it’s affecting somebody’s private rights and they have standing to to sue in court and challenge that, and that’s what happened with the, steel seizure executive order. Some contemporary examples. During, for example, during the Trump administration, President Trump made frequent use of his ability to issue executive orders to carry out his, his authority. And so, for example, he issued orders that effectuated his policies to pursue regulatory reform.

So you may have heard of the executive orders that required that we cancel two regulatory restrictions for every new major regulation we put in effect, and he directed every department and agency to carry out that 2 for 1 policy. Also, he required each regulatory agency, like the Department of Transportation where I served, to come up with a regulatory cost budget, which would be approved by OMB. These are efforts to ensure that all of the departments and agencies across the executive branch are coordinated, and, pursuing a common goal of minimizing regulatory costs, ensuring that regulations that are issued are really necessary and have been reviewed and coordinated across the executive branch, and do not create any unreasonable or undue burden on the economy. This deregulatory effort was a huge part of what led to economic boom times during the Trump administration, the other major element of that being tax cuts. But regulatory reform and the deregulation emphasis was huge.

That was done through executive orders from the president and then carried out and implemented in the regulatory and rule making actions of all the departments and agencies. Each of those rule making actions could be subject to challenge in court, and through those challenges sometimes, and and and actually there was an effort to challenge directly in court the president’s executive orders, this idea of the 2 for 1 and the regulatory cost budget was upheld because agencies still have to carry out their rule making authorities consistent with their own statutes. And as long as they’re doing that, they can, act consistently with the president’s directions in overarching executive orders like like that. The president also, used by executive order, the Defense Production Act during the COVID pandemic to direct the secretary of agriculture to ensure that there was an adequate supply of meat and poultry for the country. You may remember that meat and poultry processing plants were closing down because of the pandemic.

And so the president, using the Defense Production Act, directed the secretary of agriculture to ensure there would be priorities for government contracts for meat and poultry processing plants to stay, stay open. That was done by executive orders. Similarly, the president closed the borders to because of the COVID, pandemic and the concern that people infected with COVID could be coming, over the borders into the US. And that was in the form of a proclamation, but looked a lot like an executive order with directions given to the secretary of homeland security, for example. Now president Biden has made even more robust use of executive orders probably than president Trump.

He’s certainly on track to do that. Issued 48 in the 1st 100 days, again, using them as mouthpieces as, soap boxes, if you will, for PR purposes, but also really to put in motion in a very coordinated way a lot of his policy emphasis on climate change, on DEI, on environmental justice, racial equity, these are the policy priorities for the Biden administration, and you see those in his executive orders. And then he’s directing his agency and department heads to carry out those policies, and they are doing it, I’m telling you, in a very active way. It’s very regimented and organized across the executive branch to try to implement through guidance documents, rule making actions, departmental orders down within the layers of the executive branch, all of these Biden administration policies and goals. So the next conservative administration will have a big job to to take a careful look at all of those and unwind a lot of those policies that are not consistent with a conservative approach to governing.

That will be a huge job. That’s one of the main reasons why project 2025 is focusing so much in our pillar 4 on creating detailed playbooks and plans for departments and agencies to implement the conservative policies that are set out in our pillar 1 policy book, and the directives that the new conservative president, we can hope in 2025, will issue in the form of executive orders. So there’s gonna be a great amount of work for a new administration to do in this area. It’s very important to understand what executive orders are, what they can do, what they cannot do, how they’re used, and how they can be revoked, how everything that follows from them can be taken a second look at, and, unwound if necessary. So, I invite you to consider how you might help in advancing the preparations and planning for that kind of effort, and potentially how you might serve in a new conservative administration to carry out those policies, and understanding how executive orders work can be an important part of that.

So I hope this has been helpful in that regard, and thank you for your attention.