Don Jones

Tech | Career | Musings

The news is presently filled with POTUS’ Executive Stuff – and news outlets are using important terms incorrectly and interchangeably. Here’s the correct breakdown.

The American system is built largely around the concept of discretionary enforcement. This means that, while a legislature may pass a law, the executive responsible for implementing the law may choose to not do so, or may choose to implement it in only a limited way. This is the Executive’s “check” on the Legislature. The Legislature’s corresponding “balance” is the ability to essentially fire the Executive, meaning the Executive in theory can’t just ignore the Legislature with no consequence. This system holds true not only Federally, but in all 50 US States (Washington, D.C. being an odd duck).

At the Federal level, the Executive has five main means by which to modify the Legislature’s actions.

  • signing statement is something that accompanies legislation the Executive is signing into law. These usually are something like, “sure, but I plan to do this other thing anyway.” The legality of these is unclear as they’ve never really been challenged in the Supreme Court. Lacking any proof that they’re not legal, then, by definition they are legal.
  • An executive order is a numbered, legally binding document issued by the President. It is essentially legislation in every meaningful way. It is published in the Federal Register. While it can’t in theory conflict with Congressional law, there are a lot of ways in which an executive order can effectively trump (ha!) actual legislation.
  • An executive memorandum isn’t technically a legally binding document. They’re more off-the-record, and aren’t published in the Federal Register. However, in practice they’re not all that different from an executive order unless they’re challenged in court. These are generally binding on the agencies which report to the Executive, meaning, for example, the head of Homeland Security has to follow a memo if one is issued. There’s some debate over that, and there’s also the implied threat that the Executive can fire agency heads more or less at will.
  • proclamation is just that – a statement of intent. These are usually for non-legal, showboat-y things like declaring a “National Patriot Day” or something.

These days, executive action is used as a kind of catchall term for all of the above, although originally an executive action was a distinct thing at about the level of a proclamation.

With the current POTUS’ record breaking rate of issuance, it’s been a bit harder than usual to keep track of all these, especially when there’s no official place for them all to be summed up. Wikipedia has a pretty good list so far, which hopefully folks will keep up with, but which does not include the less-weighty proclamations.

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