Executive Orders and Presidential Transitions

Executive Orders and Presidential Transitions

July 30, 2024
Executive Orders and Presidential Transitions
Since at least the Administration of Franklin D. Roosevelt,
under Article II of the Constitution, while other directives
the concept of a President’s first “100 days” has been a
are authorized by statute and, therefore, subject to alteration
touchstone for evaluation of presidential effectiveness and
or revocation via the legislative process. For example, many
places at least some pressure on incoming Administrations
actions related to the military, such as President Harry
to act quickly on their campaign commitments and other
Truman’s desegregation of the military in 1948, are
priorities. Executive orders have developed into one of the
supported by the President’s commander in chief authority
most expedient tools available to a new President to change
under Section 2, clause 1, of Article II of the U.S.
federal policies, priorities, and operations, including during
Constitution. Others, such as many presidential actions
that closely watched early window.
related to federal workers during the COVID-19 pandemic,
are tied to specific statutory provisions.
Concerns about the volume, timing, and content of
executive orders, therefore, may be heightened during
Second, each President is generally free to amend, repeal,
presidential transitions. In particular, it appears that both
or replace any executive order, including those of previous
incoming and outgoing Administrations may use executive
Presidents. Therefore, policies enacted by executive order
orders to establish preferred policies closer to Inauguration
may be less likely to persist between Administrations than
Day than could be accomplished through laws or
policies and laws enacted through other means. For
regulations. When the incoming and outgoing Presidents
instance, in April 1992, President George H. W. Bush
are members of different political parties, this perception
issued E.O. 12800, which required federal contractors to
may be especially strong.
notify their employees that they were not legally required to
join unions. President Bill Clinton reversed that executive
This In Focus examines key aspects of executive orders and
order by issuing E.O. 12836 in February 1993. President
the executive order process with an eye toward their use
George W. Bush revoked President Clinton’s order with
during transitions.
E.O. 13201 in February 2001. President Barack Obama
reversed policy again, using E.O. 13496 in January 2009 to
An Executive Order Primer
revoke President George W. Bush’s order.
Properly issued and legally valid executive orders have
force and effect of law—unless voided or revoked by
Use of Executive Orders During Changes of
congressional, presidential, or judicial action—and
Administration
represent a direct path for a President to set policy.
Executive orders may suit the needs of an outgoing
President who wants to establish or change policy or is
There are two general sources of authority that may support
striving to secure a legacy. This is likely to be particularly
executive orders: powers granted directly to the President
true if the outgoing President expects that the incoming
under the Constitution and delegated authorities provided
President prefers a different policy on a specific issue.
by Congress. Where the President has constitutional or
statutory authority to create policy by executive order,
Running counter to the potential interests of an outgoing
executive orders may be a particularly appealing option,
President, an incoming President may be eager to act
because they allow the President to act without waiting for
quickly on his or her own policy agenda or campaign
Congress to pass legislation or an agency to use the
commitments. A new President may have specific plans to
rulemaking process. Capitalizing on these features may
modify or overturn some of his or her predecessor’s
enable a President to seize the initiative on an issue and
policies. As noted above, if those policies were established
shape the national policy and may also encourage other
by executive order, then in many cases they can be reversed
actors, including Congress, to engage on issues. All of these
in the same way. For example, on Inauguration Day in
factors may be particularly salient during the transition
2021, President Biden took a series of actions, including
period between Administrations.
executive orders that reversed major Trump Administration
policies.
While executive orders offer certain advantages for
Presidents looking to make policy, they have some limits as
In many cases, executive orders may be an effective means
policymaking tools. First, the powers granted to Congress
of accomplishing these objectives, but they do not
under the Constitution may limit the range of options
guarantee that a new policy will be successfully
available to the President. For instance, because Congress
implemented. For instance, during the first week of his
holds the appropriations power, an executive order cannot
presidency, Barack Obama issued E.O. 13492, which the
draw funds from the Treasury in excess of enacted
Administration presented as the first step in closing the
appropriations. The authority to issue some executive
detention facility at Guantánamo Bay Naval Base. In this
orders is derived directly from the President’s authority
case, as in others, an executive order alone is not always
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Executive Orders and Presidential Transitions
sufficient to fully achieve a policy objective—even when
Figure 1: Executive Orders in the First Year of New
the President has wide latitude to set policy—as the facility
Presidential Administrations
remains open to this day.
Speaking in 2008, Ed Gillespie, a counselor to President
George W. Bush, provided an explanation of the possibly
temporal nature of executive orders when commenting on a
Bush Administration executive order on budget earmarks:
“This will be on the books, and will be an executive order
that future presidents have to repeal or live with.”
Preparing Executive Orders During Transitions
Given the incentives that may be associated with quick
action during a new Administration, it may be the case that
transition team officials and other advisors to a presidential
candidate or President-elect may consider preparing draft
executive orders in advance.
For instance, many presidential candidates promise “day
one” actions while on the campaign trail. Even if this
language is understood to be aspirational or rhetorical in
Source: CRS analysis of Federal Register data available at
many instances, one of the ways that a new President can
https://www.federalregister.gov/presidential-documents/executive-
formally launch some new policies on Inauguration Day is
orders. This graphic was prepared by CRS Visual Information
through executive orders. Practically speaking, the only
Specialist Juan Pablo Madrid.
way to act so quickly is to have orders prepared in advance
for the signature of a new President. For instance, during
There are a few reasons that this apparent trend may be
the 2012 election, Mitt Romney made economic recovery a
occurring. It may be the case, for instance, that there is a
key part of his platform, and his campaign proposed “day
growing belief that executive orders are an effective (or at
one” bills and executive orders to support its policy
least expected) tool for presidential policymaking.
commitments.
Alternatively, it may be the case that the major policy
Additionally, while Title 44, Section 1505, of the U.S. Code
issues during an election or at the start of a new
requires orders to be published in the Federal Register, this
Administration fall into issue areas such as foreign affairs
publication occurs when an executive order is issued by the
in which the President has more authority to act by
President and does not delay the effective date of the order.
directive, such as when President Donald Trump issued
By practice, the White House makes most presidential
directives pertaining to immigration early in his
directives, including executive orders, available on its
Administration.
website when they are issued by the President, which may
occur several days before they are published in the Federal
It may also be the case that as more policy decisions are
Register. Particularly for issues of great public interest, it
made via executive order, there will be a greater need for
may also be the case that executive orders are announced
new Presidents to issue executive orders addressing the
while still in development.
body of their predecessors’ decisions. Both of these factors
may have contributed to the number of executive orders
Preparation of executive orders during transitions is not
issued during the first week of the Biden Administration, as
without some risks. In other circumstances, many executive
the President issued orders that reversed a number of his
orders are initially proposed or prepared by subject matter
predecessors’ policies on select issues and took new actions
experts and other officials within the policy agencies and
related to the COVID-19 pandemic.
departments. Even executive orders prepared by White
House staff may enjoy the benefit of quality control and
Additional Resources
technical assistance by lawyers and other experts in the
•
Office of Management and Budget, the Office of Legal
CRS Report R46738, Executive Orders: An
Counsel, and relevant departments.
Introduction, coordinated by Abigail A. Graber
Recent Use of Executive Orders by New
• CRS In Focus IF11358, Presidential Directives: An
Administrations
Introduction, by Ben Wilhelm
As shown in Figure 1, since the start of the 21st century
there appears to have been an increase in executive orders
Ben Wilhelm, Analyst in Government Organization and
early in new Administrations. This is especially true in the
Management
early periods of the first week and first 100 days following
IF12724
the inauguration, which may indicate that more work is
being done to prepare executive orders during the transition
period.
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Executive Orders and Presidential Transitions

Disclaimer
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