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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 ofthe 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 generally.
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 especially 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 allow the President to act unilaterally as
well 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. All
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 well-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
Congressional Research Service
https://crsreports.congress.gov
IN11540
CRS NSIGHT
Prepared for Membersand
Commi rtoes o f Con g ress --------------------------------------------------------------------------------------](ViewImageLocal?handle=hein.crs/govdcti0001&div=1&collection=&method=preview&ext=.png&size=3)
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