Executive Orders

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steve bradbury

Distinguished Fellow - Heritage Foundation, General Counsel of the Department of Transportation in the Trump Administration

Bradbury served in the Trump Administration as the Senate-confirmed general counsel of the U.S. Department of Transportation (DOT) from November 2017 until January 2021. As the Department’s chief legal officer, he oversaw all of DOT’s rulemaking and enforcement actions. During his time at DOT, he also served as the Acting Deputy Secretary of Transportation and briefly as the Acting Secretary of Transportation.

During the Bush 43 Administration, Mr. Bradbury served as the Principal Deputy and Acting Assistant Attorney General for the Office of Legal Counsel at the U.S. Department of Justice.

Mr. Bradbury clerked for Justice Clarence Thomas on the Supreme Court and for Judge James L. Buckley on the D.C. Circuit.

Executive Order Drafting & Implementation

  • Executive orders are a primary means by which the President exercises the authorities he has under Article II of the constitution, under statues or treaties
  • Criminal Limitations of Executive Orders:
    • Executives Orders must be consistent with the law
    • The President does not have the authority to appropriate money or create budgets for executive branch spending

Structure of Executive Orders

  • The structure of an executive order is dictated by the Justice Department and the Office of the Federal Register
  • Statement of Authority
    • The President’s constitutional authority is referenced
    • Specific statutes are sometimes referenced
  • Policy Statement
    • The President’s statement - the reason for the executive order and the direction the president is giving his administration to take on the specific policy area
    • May include definitions of relevant terms that need to be defined for the purpose of understanding the directions in the executive order

Executive Order Development and Approval Process

  1. Initial proposal
  2. Proposal assigned to the Director of the Office of Management & Budget to coordinate the development of the text
  3. First draft is written
  4. Draft is circulated by the OMB Director to all relevant departments, agencies, and offices
  5. Draft is sent to the Department of Justice Office of Legal Counsel (OLC) to review it for form and legality
  6. The Office of the Federal Register will review for formatting and typographical errors
  7. The White House Staff Secretary circulates it to all White House Senior Advisors who have final review and approval authority
  8. The final draft of the executive order is reviewed by the President
  9. The President signs the order
  10. The order is published in the federal register.

How Executive Orders are Used

  • Can be used as a public relations document for the incoming administration to set the tone and change direction from the previous administration
  • To give direction to agency heads and potentially instruct them to create task forces
  • To create enduring frameworks for taking action within the executive branch

Examples of Enduring Executive Orders

  • The office of Management and Budget was created by executive order and later institutionalized by Congressional legislation
  • Executive Order 12866 to analyze the cost/benefit of regulations issued by agencies
    • First used by President Reagan and still used today
  • CFIUS - Committee on Foreign Investment in the United States
    • Created by President Ford

Other Types of Presidential Action Documents

  • Presidential memorandum
    • May look a lot like an executive order but it is a less formal document where the president can discuss policy and provide direction requiring action to be carried out by subordinates
  • Presidential Proclamations
    • Oftentimes ceremonial. For example: ordering American flags to be flown at half-staff
  • Presidential Declarations
    • Typically, pursuant to a statute that gives the President authority to declare, for example, a state of emergency 
  • National Security Presidential Directive (NSPD)
    • National security versions of an executive order
    • Not published in the Federal Register because many are classified
    • Looks a lot like an executive order but addresses a national security concern
    • The development process of a NSPD is administered by the National Security Advisors Office
  • Presidential Policy Directives
    • Usually address foreign affairs or national security matters
  • Military Orders