Policy Backgrounders

The Types of Presidential Actions

May 27, 2025

The first few months of the second Trump Administration have seen a very large number of Presidential actions, continuing a trend but expanding it and extending its impact on reach. This Explainer discusses the various types of Presidential actions, how they have been used, how the system of checks and balances between the three Branches of government is designed to work, and trends in the issuance and purpose of Executive Orders.

• Broadly speaking, there are four types of Presidential actions – true Executive Orders, Presidential Memoranda, National Security Directives, and Proclamations. Each has different purposes.
• While there is a clear trend towards greater use of Executive Orders this century, the second Trump Administration has accelerated that trend. Part of the reason for the greater use of Executive Orders is that Congress has passed fewer laws, particularly at the beginning of Presidents’ terms.
• Many Executive Orders have been subject to litigation, including on whether the use of the authority is sufficiently grounded in the Constitution or a statute.

Different Types of Presidential Actions

While the press and other observers sometimes refer to various types of Presidential actions as “executive orders,” in fact there are generally four different types of Presidential actions that affect regulations, enforcement of laws, administration of the Executive Branch, areas where the President has clearly delegated Congressional authority such as tariffs, and other areas connected with the administration of government.

Executive Orders

A true Executive Order, so designated and complying with rules on how Executive Orders are issued, has the force of law until or unless it is repealed by a statute, treaty, or subsequent Executive Order or a Federal court invalidates it (some Executive Orders, such as those governing military affairs in the Second World War, have also been effectively repealed by changes in the underlying conditions that led to their issuance. An Executive Order affects management of the Executive Branch. It must be published in the Federal Register, and the date of its publication affects the date it comes into force (for instance, an Executive Order imposing economic sanctions on a country could not be enforced against an importer prior to its coming into force).

While an Executive Order generally has the force of law unless repealed by a subsequent statute, treaty, or Executive Order or a Federal court invalidates it, it cannot be used to make new law. Only Congress can do that. It must instead be grounded in a provision of the Constitution or a statute. For instance, after the invasion of Kuwait in 1990, President Bush issued an Executive Order to ban financial transactions with Iraq using authority granted under the International Economic Emergency Powers Act of 1977. Some Presidents issue policy documents to agencies (for instance with regard to AI) and start new White House offices through Executive Orders. Those are typical uses of Executive Orders.

While Presidents since Washington have sent instructions to their staff (some of which today would be characterized as Presidential Memoranda), the modern system of Executive Orders was set up in the early 20^th century and the numbered list dated back to 1862. Unsurprisingly, the longest-serving President, Franklin D. Roosevelt, issued the most Executive Orders, both in the New Deal and especially during World War II.

Presidential Memoranda

A Presidential Memorandum is simply a written instruction to a person in the Executive Branch. It arises from the President serving as head of the Executive Branch under Article II of the Constitution. It can be a formal or informal document. As such, it does not have to be published in the Federal Register and some, particularly internal instructions to Cabinet Departments and other agencies, are not. Many of them, however, are published on the White House website, for instance (among recent Memoranda) instructions to address the prevalence of invasive carp in the Great Lakes or to extend the Federal hiring freeze.

National Security Directives

A National Security Directive is essentially the same as a Presidential Memorandum but giving instructions to Departments and agencies that report to the President through the National Security Council. It does not have to be published, as they are often classified for security reasons. Many are highly classified, and sometimes even the title of the directive is classified. This type of document has had various names over the years. Perhaps the most famous is NSC 68, from the Truman Administration, which led the groundwork for US policies in the Cold War and policies towards the Soviet Union.  

Proclamations

A Proclamation, which is designated as such when issued, is particularly important for tariffs. It must be published in the Federal Register to give notice to those to whom it applies, such as importers. More generally and familiarly, proclamation authority is also used for hortatory statements such as the annual proclamations for Thanksgiving Day or for Veterans Day. Congress may also request that the President issue a commemorative proclamation honoring an event or a person, for instance National Cancer Month or similar observances. The second Trump Administration has also used proclamation authority to designate certain foreign gangs, such as Tren de Aragua, as designated foreign terrorist organizations. This type of proclamation is very similar to an Executive Order.

The Three Branches of Government and Executive Authority

The Constitution does not mention Executive Orders nor does it give the President direct powers to issue them. There is no power to rule by decree. Article II requires that the President “take Care that the Laws be faithfully Executed.” So one rationale for Executive Orders is to help the President do that with regard to the management of the Executive Branch. At the same times, the Constitution set up three co-equal branches with separation of powers and checks and balances. So the President cannot legislate, and Congress cannot act as the Executive. The principal criticism of the use of Executive Orders is that they can go beyond the President’s powers, for instance taking Congress’ authority to make laws.

Checks and Balances on Executive Orders

Strictly speaking, Congress does not need to validate a lawful Executive Order when the authority is grounded in the Constitution or in a statute. For instance, when President Truman issued an Executive Order to integrate the Armed Forces, he relied on his authority as Commander in Chief which Article II gives the President. Other Executive Orders have been far more controversial, for instance when President Roosevelt used an Executive Order to take the US off the gold standard and forbid Americans from owning more than $100 worth of gold (which President Ford later repealed by Executive Order). Sadly, President Roosevelt also used an Executive Order, based in the Alien Enemies Act of 1798, to move Japanese Americans to internment camps during World War II.

How Can Congress Delegate Power?

Congress can delegate power to the Executive Branch by statute, for instance to issue regulations under a law such as the Public Health Act, the Social Security Act, or the Clean Air Act. But this has become more controversial in recent years as some courts, including the Supreme Court, have said that Congress has gone too far in delegating its legislative powers to the Executive Branch, particularly in lengthy statutes that have given greater power to the Executive Branch to issue regulations in areas where Congress should rightly have considered the “major questions” at issue. This “nondelegation” doctrine will get a test in the Supreme Court in the next few months in a case about whether an FCC rule to fund the program for placing internet service in schools and libraries by requiring industry to fund the program through a charge on bills to customers was an improper delegation of legislative authority, on the ground that only Congress has the power to tax.

Another area in which similar concerns about delegation of Congressional authority has been discussed recently is tariffs. Currently, there is a bipartisan proposal to limit the President’s authority to impose tariffs. If that proposal is enacted (which would require the President to sign the bill or Congress to override the President’s veto), Congress would have to approve new tariffs issued under laws such as the Trade Expansion Act of 1962 and the Trade Act of 1974. But that would be simply limiting the authority Congress has delegated to the President and would almost certainly pass Constitutional muster.

Congress and Executive Orders

While Congress does not have to ratify an Executive Order (although it can if it wishes), it does have some rights regarding Executive Orders. First, Congress can pass a law to repeal or modify an Executive Order (though this would require the President to sign it or Congress to override the President’s veto). Congress can also effectively ratify an Executive Order by statute, which places the first Executive Order on firmer ground. For instance, some argued that because President Kennedy established USAID by Executive Order, President Trump could simply end it by Executive Order. But Congress, by enacting the Foreign Assistance Act in 1961 and by specifically giving appropriations to USAID each year since then, had ratified the existence of USAID and placed it on legal ground as a separate agency even though it had been first established through Executive Order. Because the President cannot use an Executive Order to stop appropriations that Congress has enacted – this would interfere with the legislative power – this is one way that Congress and the courts can limit the use of Executive Orders. Congress could also in theory pass a law limiting the use of Executive Orders, but that law might itself be subject to challenge on separation of powers grounds. The Framers intended a system of divided powers and separation of powers, knowing that this might lead to conflicts, but they were more worried about the accumulation of power.

The Judicial Branch and Executive Authority

As noted above, the Constitution does not mention Executive Orders nor does it give the President direct powers to issue them; Article II requires that the President “take Care that the Laws be faithfully Executed.” When there are disputes about the validity or scope of Executive Orders, the courts step in, as they are entitled to do using their own powers under the Constitution as an independent branch of government.

If a judge finds an Executive Order invalid or enters a stay temporarily barring enforcement of it, the President is bound to comply with the decision under the doctrine of the separation of powers. Otherwise, the President would be taking on judicial functions that rightly belong to the courts. Obviously, if the Order is barred by a district judge, the Administration can appeal, and if a circuit court continues to block the Order, it can appeal to the Supreme Court. This has happened in several instances so far, notably the Executive Order on birthright citizenship, which was blocked by several courts, and the US Supreme Court agreed to hear a case on this.

It has also happened in cases concerning the use of the Alien Enemies Act to facilitate deportations, in which the Supreme Court, 7-2 blocked further removals of foreign nationals to third countries under the Alien Enemies Act, which the President had invoked by Executive Order. The Administration argued that this issue fell within national security and thus the President’s authority under Article II, but the Court disagreed, as it had for instance in cases regarding the military commissions the Bush Administration used to try detainees at Guantanamo Bay. The Court took jurisdiction.

There is a related issue which the Supreme Court is considering right now. In the birthright citizenship cases, some judges issued nationwide injunctions against the Executive Order (see CED Policy Backgrounder Universal Injunctions’ Uncertain Future). The Administration is arguing that this is judicial overreach and that injunctions should only apply in the district or circuit in which they are issued. It is true that these nationwide injunctions have become much more prominent in the last decade. They have been used, for instance, to stop the Biden Administration enforcing its overtime regulations and its proposed student loan forgiveness. 

Justice Gorsuch has been particularly vocal against the use of nationwide injunctions. But there are powerful arguments in favor of them as well. In the birthright citizenship case, for instance, if there were no nationwide injunction, then babies might not have birthright citizenship depending on which judicial district the baby was born. And if the former overtime regulation had not been enjoined nationally, then businesses would have to give more favorable overtime provisions to different employees in different districts – a quite burdensome situation.

Trends in Executive Orders

There has been a clear trend towards increasing use of Executive Orders, both as the role of government has expanded and as Congress has enacted lengthy laws that frequently delegate power to the Executive Branch (notably, to issue regulations). Looking at the total number of Executive Orders issued by President since 1981, President Reagan issued 381 in eight years, President George Bush 166 in four years, President Clinton 364 in eight years, President George W. Bush 291 in eight years, President Obama 276 in eight years, President Trump 220 in four years, President Biden 162 in four years, and President Trump 152 to May 19, 2025.

Narrowing the scope to the first 100 days of a new President, the trend becomes even more clear: 

Taking the analysis further, in the past seven Presidential terms since the beginning of the century, Republican Presidents have used Executive Orders more extensively:

One clear change in American governance in recent decades has been the relative decline of Congress, as increased partisan division and narrow majorities have made enacting legislation more difficult. While FDR’s “100 Days” in 1933 was characterized by enactment of many new laws that constituted the First New Deal, in recent years, Congress has passed fewer laws when a new President takes office. (This analysis from the American Presidency Project includes both Executive Orders and Presidential Memoranda):

The Use of Executive Orders

Thus far, the second Trump Administration has expanded the use of Executive Orders both in their absolute numbers and the uses to which they are put. The Administration has used Executive Orders in different ways.

First, and the least controversial, is simply to repeal past Executive Orders. They did this on Inauguration Day, repealing 78 Executive Orders and other actions of the Biden Administration, which often had the effect of restoring the older Executive Orders of the first Trump Administration. This frequently happens in a change of Administrations. Some of the DEI Executive Orders, for instance, repealed Orders going back to the Johnson Administration.

Second, and similarly, some Executive Orders establish new ways of working in the Executive Branch, such as the National Energy Dominance Council. But some of the Orders falling into this category – for instance, on Federal office space management or reducing the Federal bureaucracy – may infringe on Congress’ powers by denying appropriations be used for the purpose Congress intended. Similarly, the Executive Order on the Strategic Bitcoin Reserve and Digital Asset Stockpile may violate Congress’ powers by using Federal money (from fines) without Congress appropriating it for those purposes, and the Order on the proposed Sovereign Wealth Fund apparently seeks to fund it in part from sales of Federal assets without any mention of Congress approving the transfer from the Treasury’s General Fund (for instance on sales of land or proceeds from spectrum auctions) to the new sovereign wealth fund.

Third, the Administration has used Executive Orders to expand the President’s powers. One of the most significant Orders in the second Trump Administration so far was the Executive Order to put independent regulatory agencies (including the Federal Reserve) more directly under the control of the President. That Order made an exception for monetary policy, but it did affect control of the Fed’s banking regulation, placing the extent of the Fed’s independence, in both regulatory and monetary policy, in question.  Simply suggesting that the President has “no intention” of firing Chairman Jerome Powell implies that he believes he has this power.

The Administration argues, using the theory of the unitary executive, that these agencies, including the FTC, the SEC, and others must be in the Executive Branch, and therefore that the President, as head of the Executive Branch, should be able to fire “employees” of the Executive Branch, even if they have been confirmed by the Senate, and even though the relevant statutes say they may be fired only for cause or malfeasance. Using this authority, the President has fired the Democratic commissioners of the FTC and the Consumer Product Safety Commission, leaving only Republicans there.

Cases challenging these decisions are going through the courts Recently, the Supreme Court stated that [“b]ecause the Constitution vests the executive power in the President . . . he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents [.]” The effect of this was to permit, at least for now, the President’s decisions to remove members of the Merit Systems Protection Board and National Labor Relations Board without cause. While the court was careful to note that it was not deciding whether these particular removals fall within an exception, pending “full briefing and argument,” it stated that “the Government is likely to show that [both agencies] exercise considerable executive power” and that “the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.” In support of this decision, the Court quoted a 2017 precedent that “[t]he purpose of . . . interim equitable relief is not to conclusively determine the rights of the parties, but to balance the equities as the litigation moves forward.”

Fourth, sometimes the Administration has used Executive Orders not just for government reorganization but to seek to cancel appropriations that have been approved by Congress. Cases on these Orders are very likely headed to the Supreme Court. 

Fifth, the Administration has used Executive Orders to advance deregulation, for instance in the Executive Order on showerheads, in which the President wrote that “Notice and comment is unnecessary because I am ordering the repeal.” This is very different from the usual procedures under the Administrative Procedure Act, in which most deregulation (in essence, repealing a regulation) is done through notice-and-comment rulemaking to give business and other stakeholders an opportunity to comment. The Administration has signaled that many regulations subject to repeal as part of the DOGE deregulatory effort will also simply be repealed through Executive Order without using typical notice-and-comment rulemaking procedures. This raises questions as to how business can be sure its voice is heard; even deregulation can have the effect of skewing market incentives.

The Administration may be changing its policies on the mechanics of deregulation a bit. For instance, the recent Presidential Memorandum on water pressure standards did not simply order repeal of regulations but instead instructed the Secretary of Energy to “consider using all 

lawful authority to rescind, or as appropriate, amend to revert to the standards required by statute” – a different way of proceeding. But in that same Memorandum, the President also directed the Energy Department not to enforce the current standards, so the President is taking a very direct approach waiving regulations currently in force.

Finally, sometimes Executive Orders or parts of them do not have the force of law and are thus not really Executive Orders. We saw this recently in the Executive Order on drug pricing, in which the President called for US businesses to reduce the prices of drugs voluntarily as well as asking the Department of HHS to “facilitate” direct-to-consumer purchasing programs for prescription drugs at a favorable price.

As in past Administrations, many of these regulatory and other actions will be litigated in the courts. As of May 1, there have been 328 cases challenging actions of the Administration, many involving Executive Orders. These cases have led to over 200 rulings against the Administration, 43 in support, and about 140 pending; at least nine of them have been considered in the Supreme Court. One thing is certain: we will see additional litigation on these Executive Orders in the months ahead, and very likely a few decisions from the Supreme Court.

Conclusion

It is reasonable to assume that the current trend towards greater use of Executive Orders will continue and that the courts will increasingly be called on to determine whether they are sufficiently grounded in the Constitution or a statute to be valid. Looking more deeply into the future, one important question will be the extent to which Congress will seek to assert or reclaim its own authority, which might have the effect of reducing the need for and increasing use of Executive Orders.