Poverty lawyers frequently engage the executive branch of the government on behalf of their clients. After all, the executive branch oversees many of the safety-net programs, such as housing assistance, health coverage, cash assistance, and food assistance, designed to support people in poverty. As a result, many poverty lawyers are experienced in challenging agency decisions or administrative actions through the Administrative Procedure Act. By contrast, poverty lawyers have historically been less familiar with the executive directives, such as executive orders and presidential memoranda, taken by presidents. But because the last several presidential administrations have enacted more and more policy through executive directives, poverty lawyers need to understand executive directives and how to challenge them.
These directives, which have the force of law, often have profound impact on clients in poverty. For example, Presidents John F. Kennedy and Bill Clinton both used executive directives to combat discrimination in federally funded housing.1 After the U.S. Supreme Court’s decision in Olmstead v. L.C., Pres. George W. Bush used an executive directive to instruct various federal agencies to “work with States to help them assess their compliance with the Olmstead decision and the [Americans with Disabilities Act] in providing services to qualified individuals with disabilities in community-based settings, as long as such services are appropriate to the needs of those individuals.”2
The current president has issued more executive orders (a form of executive directive) so far in his term than any of his recent predecessors.3 These directives, among other orders, attack the Affordable Care Act, impose anti-Muslim immigration restrictions, and reduce federal regulation by requiring federal agencies to eliminate two regulations for each new regulation they promulgate.4 As the president struggles to move his policy agenda through Congress, he will likely continue to use executive directives to achieve his policy goals. Poverty lawyers should be prepared to analyze new executive directives for the impact on their clients and challenge the directives in court when they are invalid.
What Are Executive Directives, and How Do They Interact with the Administrative Procedure Act?
A president’s valid executive directives can make law. Yet making executive directives lacks the procedural safeguards of the notice-and-comment process required for most agency actions or the debate-and-hearing process used by Congress to enact statutes. Over the years presidents have used a variety of written instruments to implement their policy agendas—here I refer to these instruments collectively as “executive directives.”5 While presidents in the early years of the nation used various instruments without necessarily distinguishing among them, over time the processes for different executive directives—executive orders, presidential proclamations, presidential memoranda, administrative orders, presidential notices—have become more formal and differential.6 In 1907 the U.S. Department of State started to assign unique identification numbers to executive orders and presidential proclamations and even attempted to number those documents that preceded the State Department’s undertaking.7 Then in 1935 Congress required the president to follow certain minimal procedural requirements, including publishing them in the Federal Register, before issuing executive orders and certain presidential proclamations or presidential memoranda.8
Over the last century or so, as the procedures surrounding the use of executive directives have become more formal, the distinctions among the various types have become somewhat clearer. Since the early 1900s, executive orders have broadly tended to concern the administration of executive branch agencies and officials.9 Presidential memoranda have generally governed the more mundane details of executive agency operation.10 Presidential proclamations have tended to concern the interests of private individuals and are usually hortatory; examples include declaring a particular holiday or recognizing the contributions of a particular individual.11 The distinctions among these instruments can be blurry, however, and different presidents have used them somewhat differently.12 And, despite the distinctions in their scope and substance, any of them may carry the force of law when published under a legitimate claim of authority.13
While valid executive directives have the force of law, the president has discretion to modify, overturn, or supersede a valid executive directive as long as doing so does not violate the law.14 In other words, the executive directive remains in force at the president’s pleasure. Commonly new presidents withdraw or supersede their predecessors’ executive directives that conflict with their own policy objectives. For example, since 1984 all four Republican presidents have used their executive authority to perpetuate the “global gag rule,” which directs that nongovernmental organizations receiving federal family planning funding can “neither perform nor actively promote abortion as a method of family planning in other nations.”15 The two Democratic presidents who served during that period have used their authority to rescind the global gag rule upon taking office.16
The body of law arising from the Administrative Procedure Act does not apply to a president’s executive directives since the president is not an 'agency' for purposes of the Act.
Many poverty lawyers are familiar with reviewing executive branch action under the criteria set forth by the Administrative Procedure Act. However, the body of law arising from the Administrative Procedure Act does not apply to a president’s executive directives since the president is not an “agency” for purposes of the Act.17 The president has broad powers over the executive branch of government. Thus he has substantial discretion to use executive directives to organize and direct the executive branch agencies under his authority. Still the courts have consistently found that the president cannot use executive directives to circumvent the Administrative Procedure Act. For example, the president may not, by executive directive, undo regulations that have been duly promulgated according to the Administrative Procedure Act, although he may direct the relevant agency to revisit them and revise them pursuant to notice and comment.18 At least one court has held that the president may not effectively repeal a duly promulgated rule by directing an agency to postpone the effective date of the rule without engaging in a notice-and-comment period.19 Neither can a president directly withdraw subregulatory guidance issued by a federal agency or official, although he can probably direct the appropriate official to do so.20
When Should Executive Directives Be Challenged in Court?
The U.S. Supreme Court has held that the president’s authority to make an executive directive “must stem either from an act of Congress or from the Constitution itself.”21 The seminal case in evaluating the legality of an executive directive is Youngstown Sheet and Tube Company v. Sawyer.22 That case arose from Pres. Harry S. Truman’s actions in the course of the Korean conflict of the 1950s, during which the president sent troops to South Korea without a congressional declaration of war. While the U.S. troops were involved in the Korean conflict, a dispute arose between unionized workers and management at the steel mills that supplied materials for weapons and other “war materials” needed by those troops, and the workers threatened to strike.23 Concerned that a strike and the resulting steel shortage would imperil the United States’ military efforts in Korea, President Truman, “a few hours before the strike was to begin, issued Executive Order 10340 ... direct[ing] the Secretary of Commerce to take possession of most of the steel mills and keep them running.”24
The steel mill owners challenged the president’s authority to seize their mills, and the case proceeded to the U.S. Supreme Court, which held the executive order invalid as exceeding the president’s statutory and constitutional authority.25 The majority noted that Congress had expressly rejected legislation that would have granted the president authority for seizure in times of emergency.26 The Court held that the president therefore lacked the authority to seize the mills under the “take care” clause of the Constitution.27 The Court also held that the president’s authority as commander in chief could not justify the seizure because the need for steel to further the president’s military goals was too attenuated from the “day-to-day fighting in a theater of war.”28
The continuing legacy of Youngstown, however, appears in Justice Jackson’s concurring opinion, which set forth a tripartite scheme for evaluating the legitimacy of an executive directive:
Where the president acts pursuant to an express or implied delegation of authority from Congress, a court will review an executive directive only for an abuse of discretion;
Where Congress has neither granted nor denied the president authority, a court will review an executive directive less deferentially to ensure that it is consistent with the law;
Where the president acts in defiance of Congress’s authority, an executive directive will be presumed invalid, unless the president can show that the order falls within the scope of the president’s constitutional authorities that cannot be overridden by Congress.29
Pursuant to Justice Jackson’s framework, subsequent courts have fleshed out the test for determining the scope of the president’s executive authority. A court will first ask whether the president issued the executive directive pursuant to congressional authority. The president’s authority is strongest when it arises from an explicit or implicit delegation of authority from Congress.30 In such instances, the president is undertaking his duties and obligations under the Constitution’s “take care” clause.31 When the plain language of the statute gives a clear delegation to the president to act, courts will uphold his executive directive.32 When there is no express delegation, courts will use established canons of statutory interpretation to determine whether the statute implicitly delegates authority.33 If the court determines that the president acted pursuant to a delegation of authority from Congress, the court will almost always uphold the challenged executive directive. If the court finds no delegation of congressional authority, the court will proceed to the second inquiry.
If congressional authority does not authorize the president’s action, the court will consider whether the action is consistent with the Constitution or a statute. Executive directives that derive from the president’s constitutional authority fall into what Justice Jackson called the “zone of twilight in which [the president] and Congress may have concurrent authority, or in which its distribution is uncertain.”34 Under this standard, courts have found that the president’s authority for issuing an executive directive may derive from the president’s constitutional position as chief executive.35 Some executive directives that concern the military may also derive from his position as commander in chief.36 Under these authorities, presidents have broad power to set out their own policy positions as long as they are consistent with the law.37 This is particularly the case where Congress declines to legislate in the policy area in which the president acts.38 Still, to be presumed valid, an executive directive must not conflict with a statute or violate the Constitution. A president will occasionally argue that an executive directive, while it may violate a statute, should nonetheless be upheld because it falls in an area where the president has exclusive authority. In this case the court will proceed to the third inquiry.
Presidents have broad and expansive powers to make law unilaterally through executive directives with little public input or oversight. This power is not unlimited, however.
A court will consider whether, when the president’s action is inconsistent with a statute, the executive directive is nonetheless authorized by the authorities granted to the president under the Constitution. Where a court determines that a president made an executive directive pursuant to his exclusive constitutional authority, the court will uphold the directive and strike down or vacate any contradictory statutory provisions.39 The U.S. Supreme Court recently applied this test to determine whether, consistent with presidential policy not to recognize any country as having sovereignty over Jerusalem but inconsistent with certain provisions of the Foreign Relations Authorization Act, the U.S. State Department was correct to refuse to list “Israel” as the birthplace of a person born in Jerusalem.40 The Court held that, because the Constitution granted the president the exclusive power to grant formal recognition to a foreign sovereign, where the president had exercised that authority, “Congress may not enact a law that directly contradicts it.”41 As such, the provisions of the Foreign Relations Authorization Act that purported to allow individuals born in Jerusalem to list “Israel” as their place of birth on various official documents were invalid. These provisions contradicted the president’s decision not to recognize any country as having sovereignty over Jerusalem, which was wholly within his constitutional authority.42
Presidents have broad and expansive powers to make law unilaterally through executive directives with little public input or oversight. This power is not unlimited, however. Executive directives must be consistent with law and the Constitution and may not exceed the president’s authority as granted by the Constitution and Congress. Pres. Donald Trump has attempted to make many sweeping policy changes through executive directives. Already many of his executive directives have harmed low-income people. Poverty lawyers should continue to watch for future executive directives that could harm their clients and analyze new executive orders to determine whether they are appropriate exercises of the president’s authority under law. Where an executive directive poses a threat to clients, consider consulting with other poverty lawyers to determine whether litigation is appropriate.Download this article