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1 1 (July 30, 2024)

handle is hein.crs/goveqcl0001 and id is 1 raw text is: Executive Orders and Presidential Transitions July 30, 2024 Since at least the Administration of Franklin D. Roosevelt, the concept of a President's first 100 days has been a touchstone for evaluation of presidential effectiveness and places at least some pressure on incoming Administrations to act quickly on their campaign commitments and other priorities. Executive orders have developed into one of the most expedient tools available to a new President to change federal policies, priorities, and operations, including during that closely watched early window. Concerns about the volume, timing, and content of executive orders, therefore, may be heightened during presidential transitions. In particular, it appears that both incoming and outgoing Administrations may use executive orders to establish preferred policies closer to Inauguration Day than could be accomplished through laws or regulations. When the incoming and outgoing Presidents are members of different political parties, this perception may be especially strong. This In Focus examines key aspects of executive orders and the executive order process with an eye toward their use during transitions. An Execut ve Order Primer Properly issued and legally valid executive orders have force and effect of law-unless voided or revoked by congressional, presidential, or judicial action-and represent a direct path for a President to set policy. There are two general sources of authority that may support executive orders: powers granted directly to the President under the Constitution and delegated authorities provided by Congress. Where the President has constitutional or statutory authority to create policy by executive order, executive orders may be a particularly appealing option, because they allow the President to act without waiting for Congress to pass legislation or an agency to use the rulemaking process. Capitalizing on these features may enable a President to seize the initiative on an issue and shape the national policy and may also encourage other actors, including Congress, to engage on issues. All of these factors may be particularly salient during the transition period between Administrations. While executive orders offer certain advantages for Presidents looking to make policy, they have some limits as policymaking tools. First, the powers granted to Congress under the Constitution may limit the range of options available to the President. For instance, because Congress holds the appropriations power, an executive order cannot draw funds from the Treasury in excess of enacted appropriations. The authority to issue some executive orders is derived directly from the President's authority under Article II of the Constitution, while other directives are authorized by statute and, therefore, subject to alteration or revocation via the legislative process. For example, many actions related to the military, such as President Harry Truman's desegregation of the military in 1948, are supported by the President's commander in chief authority under Section 2, clause 1, of Article II of the U.S. Constitution. Others, such as many presidential actions related to federal workers during the COVID-19 pandemic, are tied to specific statutory provisions. Second, each President is generally free to amend, repeal, or replace any executive order, including those of previous Presidents. Therefore, policies enacted by executive order may be less likely to persist between 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 their employees that they were not legally required to join unions. President Bill 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. Use of Executie Orders During Changes of Administration Executive orders may suit the needs of an outgoing President who wants to establish or change policy or is striving to secure a legacy. This is likely to be particularly true if the outgoing President expects that the incoming President prefers a different policy on a specific issue. Running counter to the potential interests of an outgoing President, an incoming President may be eager to act quickly on his or her own policy agenda or campaign commitments. A new President may have specific plans to modify or overturn some of his or her predecessor's policies. As noted above, if those policies were established by executive order, then in many cases they can be reversed in the same way. For example, on Inauguration Day in 2021, President Biden took a series of actions, including executive orders that reversed major Trump Administration policies. In many cases, executive orders may be an effective means of accomplishing these objectives, but they do not guarantee that a new policy will be successfully implemented. 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 GuantAnamo Bay Naval Base. In this case, as in others, an executive order alone is not always

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