Presidential Transitions: Executive Orders

Presidential Transitions: Executive Orders

INSIGHTi
Presidential Transitions: Executive Orders
November 24, 2020
In Section 2 of the Presidential Transition Act of 1963 (as amended; 3 U.S.C. 102 note), Congress
declared that “[t]he national interest requires that [presidential] transitions ... be accomplished so as to
assure continuity in the faithful execution of the laws and in the conduct of the affairs of the Federal
Government, both foreign and domestic.” The crux of such a transition is the transfer of executive power
from the incumbent to the President-elect. The executive’s power manifests in a variety of processes with
application to a broad range of policy areas and issues. CRS has produced a set of products examining
selected processes and policies that may be of particular interest during a presidential transition. This
Insight discusses how incoming and outgoing Administrations might use executive orders during the
transition period, including some potential advantages and limits of these strategies. Other related
products examine clemency, government records, presidential appointments (executive branch),
rulemaking, and presidential transitions general y.
Concerns about the volume, timing, and content of executive orders may be heightened during
presidential transitions. In particular, the perception exists among some observers that the outgoing and
incoming Administrations can rely on executive orders to establish their own policy preferences within
the executive branch. When the incoming and outgoing Presidents are members of different parties, this
perception may be especial y strong.
Executive orders are a significant vehicle for unilateral action by the President. They have the force and
effect of law—unless voided or revoked by congressional, presidential, or judicial action—and represent
one of the most direct ways a president can set policy. Presidents may find executive orders a particularly
appealing option in some situations, because executive orders al ow the President to act unilateral y as
wel as quickly and directly. Capitalizing on these features enables Presidents to seize the initiative on an
issue and shape the national agenda and may encourage other actors, including Congress, to respond. Al
of these factors may be particularly salient during the transition period between Administrations.
While executive orders may offer some advantages for presidential policymaking, they arguably have at
least two distinct disadvantages. First, the authority of Congress to legislate in many areas limits the range
of options available and, in many cases, provides the President little or no discretion. While Presidents are
sometimes able to take advantage of ambiguity in statutes to justify executive orders, such actions can
lead to litigation (as in the wel -known Youngstown Steel case).
Second, each President is free to amend, repeal, or replace any executive order, including those of his
predecessors. Therefore, policies enacted by executive order may be less likely to persist between
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Administrations than policies and laws enacted through other means. For instance, in April 1992,
President George H. W. Bush issued E.O. 12800, which required federal contractors to notify employees
they were not legal y required to join a union. President Bil Clinton reversed that executive order by
issuing E.O. 12836 in February 1993. President George W. Bush revoked President Clinton’s order with
E.O. 13201 in February 2001. President Barack Obama reversed policy again, using E.O. 13496 in
January 2009 to revoke President George W. Bush’s order.
Executive orders may suit the needs of an outgoing President who wants to establish or change policy or
is striving to secure a presidential legacy. This is likely to be particularly true if the incoming President is
a member of a different political party or if the outgoing President expects that the incoming President
prefers a different policy on a specific issue. For instance, during the transition period at the end of his
Administration, President Clinton issued a number of executive orders and other directives that set aside
additional land for national parks and other nature reserves. This may indicate that President Clinton
wanted to make this action part of his own legacy or was concerned that President George W. Bush might
consider additional development or commercial activity on those lands.
An incoming President, who is likely to be eager to act quickly on his policy agenda, may seek to modify
or overturn certain of his predecessor’s actions or to distinguish himself from his predecessor in other
ways. In many cases, executive orders may be an effective means of accomplishing these objectives. For
instance, during the first week of his presidency, Barack Obama issued E.O. 13492, which the
Administration presented as the first step in closing the detention facility at Guantánamo Bay Naval Base.
As President Obama learned in this case, however, an executive order alone is not always sufficient to
achieve a policy objective, even when the President has wide latitude to set policy. Speaking in 2008, 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
wil be on the books, and wil be an executive order that future presidents have to repeal or live with.”
For additional information on executive orders, see CRS Report RS20846, Executive Orders: Issuance,
Modification, and Revocation, by Todd Garvey, and CRS In Focus IF11358, Presidential Directives: An
Introduction, by Ben Wilhelm.

Author Information

Ben Wilhelm

Analyst in Government Organization and Management

Disclaimer
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