Presidential Directives: An Introduction

Presidential Directives: An Introduction

November 13, 2019
Presidential Directives: An Introduction
Presidential directives, such as proclamations and executive
announcement of a directive by an Administration and its
orders, are a tool used by Presidents to announce official
official publication.
policy and make declarations in their roles as leader of the
executive branch, commander in chief of the Armed Forces,
The Daily Compilation of Presidential Documents
and head of state. Presidents have used directives
(https://www.govinfo.gov/app/collection/cpd) and
throughout American history for a wide variety of purposes,
https://www.whitehouse.gov/ also publish presidential
but they have taken on a more central policy role in recent
directives (and other presidential documents including
Administrations.
signing statements, messages, and press releases) but may
not be as current or comprehensive as the Federal Register.
Background
In 1789, during the first months of government under the
Presidential directives with ongoing effect remain in force
new Constitution, President Washington issued both the
across presidential transitions, but generally may be
first presidential proclamation, declaring a national day of
amended, repealed, or replaced by the President. For
Thanksgiving in November 1789, and the first precursor of
instance, at the start of an Administration, the new
the modern executive order. In that directive, Washington
President frequently revokes or amends some of the
ordered executive branch officers who had also served
executive orders issued by previous Presidents. When
under the Articles of Confederation to report to the new
researching an executive order, therefore, it is important to
President on the ongoing affairs of the government and to
determine its current status. Both the National Archives and
explain their duties.
Records Administration (partial coverage from the Franklin
Roosevelt to Barack Obama Administrations at
Since the Administration of Franklin Delano Roosevelt,
https://www.archives.gov/federal-register/executive-orders/
presidential directives have expanded in both form and
disposition) and the Federal Register (beginning in 1994 at
function. Increasing use of executive orders and the
https://www.federalregister.gov/presidential-documents/
development of national security directives have increased
executive-orders) maintain online disposition tables for
both the formality of the official presidential decision
executive orders. These tables allow users to check the
process and the breadth of covered actions and policy areas.
status of individual orders, including whether they have
The development process defined in Executive Order 11030
been revoked, amended, or superseded by later executive
(originally issued June 19, 1962) sets out more detailed
orders.
guidelines for the preparation and internal review of
executive orders and proclamations.
Classes of Directives
Presidents may avail themselves of a few different types of
The Constitution does not explicitly recognize a
directives. Although it is useful to know the different types
presidential power to issue directives. However, there has
of presidential directives, several of the classifications are
been general acceptance since the Washington
not as clear or as legally significant as they might appear to
Administration that this authority is necessary for the
be, and different Administrations may use different naming
President to manage the executive branch and that some
conventions in some cases.
authority to issue directives is inherent in the executive’s
Article II powers. Congress may also grant the President
Proclamations
discretion to make certain decisions and determinations that
There are two distinct classes of presidential directives that
have legal effect but may be affected by subsequent
are referred to as proclamations. The first are ceremonial
legislative action.
announcements, such as Washington’s Thanksgiving
proclamation, that are issued in observance of significant
Finding Presidential Directives
events. Second, there are substantive proclamations that are
Many presidential directives are published in the Federal
typically legal pronouncements on international trade,
Register under the general heading “Executive Office of the
national emergencies, or federal land management.
President” and compiled in Title 3 of the Code of Federal
Proclamations issued pursuant to the Antiquities Act of
Regulations (CFR). Under 44 U.S.C. §1505, proclamations,
1906 (P.L. 59-209), which allows the President to create
executive orders, and other documents of “general
national monuments on public lands, are a well-known
applicability and legal effect” must be published in the
example of substantive proclamations.
Federal Register.
Executive Orders
While the Federal Register is the source of record and is
Executive orders are arguably the best-known type of
updated daily, there may be a lag between the public
presidential directives and, among all types of presidential
directives, may have the most significant impact on policy.
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Presidential Directives: An Introduction
Executive orders are typically directed at executive branch
President Trump’s first executive order, Executive Order
officials and instruct them on how to manage agency
13675, issued January 20, 2019, established that the
operations. By defining executive branch policies, though,
Administration would seek the repeal of the Affordable
executive orders may impact private citizens by altering
Care Act (ACA) and directed executive agencies to
how executive branch officials implement the law. In
“minimize the unwarranted economic and regulatory
addition, executive orders generally do not include sunsets
burdens of the [ACA]” and “afford the States more
or other time limitations. Some Administrations have used
flexibility and control” in implementing the ACA. The
the term presidential memorandum for directives that have
order explicitly recognized that the executive branch lacked
similar legal effect to executive orders but are of limited
the authority to decline to enforce duly enacted law.
duration.
However, it also changed how the executive branch would
interpret and implement a major area of federal law and
Other Types of Directives
several significant federal programs.
In addition to proclamations and executive orders,
Presidents issue other types of directives with names
Congress’s Role
including directives, decisions, notices, and findings.
From the perspective of Congress, presidential directives
Although decisions regarding the titling of directives may
can be divided into two categories based on the claimed
be broadly consistent within a presidential Administration,
source of authority. If a presidential directive purports to be
the titles of certain types of directives may vary across
based on the President’s Article II powers, then separation
Administrations. However, the use of different titles does
of powers principles may dictate that Congress does not
not necessarily mean that certain types of directives are
have the authority to alter or repeal the directive by
intended to serve different purposes or be otherwise distinct
legislation. In these cases, a presidential directive could still
from directives issued by a previous Administration.
be challenged in court if a plaintiff believes it exceeds the
President’s Article II authority.
The clearest example of this phenomenon comes in national
security policy. As stewardship of national security became
When the President issues a directive based on statutory
a central part of the President’s daily activities following
authority, Congress has several avenues for direct action.
World War II, national security directives became an
Congress has revoked executive orders in the past via
important source of presidential policy. Many of these
legislation. Additionally, Congress may alter the statute that
directives are classified documents and may not be
provides the underlying authority for the President to issue
declassified, if at all, until years or decades following the
the directive or use appropriations bill language to deny
end of the Administration that issued them. Generally, the
funding for the implementation of the directive or place
two types of national security directives are high-level
other conditions upon spending for that purpose.
discussion memoranda used by the President and senior
advisors and decision documents that establish
In addition, if Congress supports the directive, it may
Administration policy.
codify the substance, with or without modifications,
through regular legislation, ensuring that the action cannot
As each President has brought his own perspective and
be reversed by future Administrations without
style to managing the White House, the names of these
congressional action. In all of the cases outlined above,
national security directives have also changed with each
Congress must pass legislation and it must be presented to
Administration. For instance, they were referred to as
the President and signed, or a veto must be overridden, for
National Security Presidential Directives in the George W.
the action to have effect.
Bush Administration and Presidential Policy Directives in
the Obama Administration, and are termed National
If Congress does not take action in response to a validly
Security Presidential Memoranda in the Trump
issued executive order, it continues in effect until it is
Administration.
altered or revoked by the President.
Use of Presidential Directives in Recent
Finally, both Congress and the executive branch have
Administrations
established some parameters for presidential directives in
Both the Obama and Trump Administrations have asserted
general and executive orders in particular. For instance, as
presidential authority to shape policy with directives and
discussed above, Congress requires that proclamations,
implemented high-profile policies via executive order. A
executive orders, and other documents be published in the
notable example from each Administration illustrates these
Federal Register, which allows better public and legislative
actions’ important national policy and political
oversight of executive branch actions.
implications.
CRS Resources
On January 22, 2009, President Barack Obama signed
For more detailed discussion, see CRS Report RS20846,
Executive Order 13492, which ordered a review of the
Executive Orders: Issuance, Modification, and Revocation,
status of all individuals detained by the Department of
by Todd Garvey.
Defense at Guantanamo Bay Naval Base and directed that
the detention facility be closed within one year. The order’s
Benjamin B. Wilhelm, Analyst in Government
implementation outcomes notwithstanding, it reflected a
Organization and Management
shift in executive branch policy and sought to resolve a
politically controversial and legally complex issue.
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Presidential Directives: An Introduction

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