The Tarlton Law Library is open at this time with access limited to current UT Law students, faculty, and staff. Members of the UT Austin community unaffiliated with the law school may contact the Circulation Desk (email@example.com, 512-471-7726) for assistance with accessing library resources. Online reference services are also available. Please see the Tarlton Reopening FAQs and the Texas Law Fall 2020 Reopening Plan for additional details
Article II of the U.S. Constitution grants the President broad powers over the executive branch of the federal government. In addition to constitutional sources of executive authority, Congress can also delegate certain powers to the President, explicitly or implicitly. One common way that the President exercises power is through executive action, the most well-known type being the executive order.
Presidential documents can come in different varieties. Some of the most common forms are executive orders, presidential proclamations, signing statements, and general policy directives. This guide is designed to help researchers find executive orders and other presidential documents and actions, as well as to help them learn more about the use of executive orders and executive action. The "How to Find Executive Orders & Other Presidential Documents" section describes the different types of presidential documents, outlines the general process of finding them, and lists publications and resources you can use to find them. The remaining sections list materials that delve deeper into various legal and historical topics surrounding the use of executive orders, giving the researcher a broad overview.
Executive orders are documents through which the President expresses a policy position and explains how that policy will be executed. The executive order is perhaps the most visible form of presidential document. While these documents are often compared to formal legislation (like statutes), executive orders are more like sets of instructions for officials and agencies within the executive branch. The orders direct these individuals and organizations to act in prescribed ways that align with the President’s view of their own powers in a given area (immigration, defense, etc.). In theory, executive orders only have the force of law to the extent they draw on authority granted to the President in the Constitution or delegated to the executive branch by Congress. Each instruction in an executive order cites a source of authority (such as a statutory provision), and the Office of Management and Budget issues a “Budgetary Impact Statement” for every order. In practice, executive orders have sometimes been the subject of controversy when the President uses them to assert novel or unprecedented interpretations of executive power, such as in the landmark Youngstown Steel case, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Legal scholarship in this area frequently uses executive orders as a lens through which to examine the mechanisms and limits of executive power.
For more information on the Youngstown Steel case, see Executive Order No. 10,340, 17 Federal Register 3139 (1952) (President Truman’s steel seizure executive order) and Staff of House Committee on Government Operations, 85th Congress, 1st Session, Executive Orders and Proclamations: A Study of a Use of Presidential Powers (Committee Print 1957). (The Congressional Research Service has noted that the description of executive orders and proclamations in this document is “widely accepted.”)
Presidential proclamations are public declarations of presidential policy, often for ceremonial purposes. The vast majority of proclamations are intended to honor or acknowledge specific private individuals, organizations, or events, such as World Freedom Day and National Apprenticeship Week. Accordingly, the primary audience for proclamations is the public at large, rather than members of the executive branch (to whom executive orders are directed). While these declarations are generally not intended to have legal effect, a proclamation concerning an area within the President’s authority (such as international trade) can have the force of law if it is crafted to do so. For example, President Trump’s 2018 steel and aluminum import tariffs were implemented as proclamations. See Proclamation No. 9776, 83 Fed. Reg. 45,019 (Aug. 29, 2018) and Proclamation No. 9777, 83 Fed. Reg. 45,025 (Aug. 29, 2018).
Signing statements are messages that the President transmits at the time of signing new legislation into law. These statements are often simple or generic explanations of the rationale for the new law and its general purpose. However, the President sometimes takes this opportunity to communicate views on the interpretation of particular provisions within the law or comment on how the law will be enforced. While the executive branch sends a variety of formal and informal communications to Congress in the normal course of government operations (proposing new legislation, briefing legislators, explaining rationales for vetoes, etc.), signing statements have been uniquely controversial. Signing statements do not have the same formalized legal effect as executive orders or proclamations, and they do not affect the validity of the signed law (see DaCosta v. Nixon External, 55 F.R.D. 145, 146 (E.D.N.Y. 1972)). However, some scholars and members of Congress have expressed concern that these interpretative statements insert the executive into the legislative record, improperly invading the domain of the legislature and the judiciary. This has not stopped legal publishers, such as Westlaw, from including signing statements in compiled legislative histories.
The President produces a number of other presidential documents besides executive orders and presidential proclamations. Some of these documents are “directives,” with titles such as directive, memoranda, or decision. The title of presidential documents is not determinative of their purpose, and the naming of this class of directive document may change across administrations. Often, these documents relate to foreign affairs and homeland security, and thus may initially be classified or simply difficult to locate. Theoretically, any presidential document that is intended to have “general applicability and legal effect” must be published in the Federal Register, whether it is labeled an executive order, proclamation, or anything else. However, directives that are “effective only against Federal agencies or persons in their capacity as officers, agents, or employees thereof” are specifically excluded from this requirement (44 U.S. Code § 1505), and it is not unusual for the President to issue directives under different labels, possibly in an effort to sidestep this publication requirement. See Phillip J. Cooper, Power Tools for an Effective and Responsive Presidency, 29 Administration & Society 529, 544 (1997).
Article II, Section 2, Clause 1 of the U.S. Constitution grants the President the power to exercise several varieties of executive clemency, each of which grants some form of relief from criminal punishment for federal offenses. The most visible manifestation of this power is the presidential pardon, whereby the Executive eliminates or forecloses the punishment of an individual for a federal offense. The clemency power can take several other forms as well, including the blanket grant of amnesty (essentially a pardon extended to every member of a similarly situated group), the remission of a previously assessed federal fine, the commutation of a criminal sentence, or the temporary suspension of a sentence (called a “reprieve”).
The granting of such relief is generally memorialized in a formal Executive Grant of Clemency document, though the process by which executive clemency is exercised has not always been uniform. For example, Presidents have sometimes granted clemency through proclamation, such as President Carter's Proclamation 4483, which pardoned many individuals who had violated the Selective Service Act during the Vietnam War. As a general matter, the Office of the Pardon Attorney within the U.S. Department of Justice administers a formal process through which individuals can apply for executive clemency, as described in 28 CFR §§ 1.1 through 1.11. However, these regulations are purely advisory, and do not restrict the executive from granting executive clemency without reliance on the DOJ’s recommendations or review process. This can make it difficult to locate presidential documents related to executive clemency, including a specific Executive Grant of Clemency document or clemency application. For more recent presidential administrations, the Office of the Pardon Attorney maintains web pages with copies of Clemency documents related to all pardons and commutations that have been granted since President Nixon, and all those denied since President H.W. Bush. Currently pending applications for clemency can be searched here. Additionally, ProQuest's Presidential Materials collection includes presidential pardons from President Washington to the current administration.