President Trump has been taking action by issuing both executive orders and presidential memorandums. What’s the difference? Matt Hoffman explains.
WASHINGTON — The first two times President Trump imposed a travel ban, he used an executive order. The third time, he wrote it as a proclamation.
He’s signed 48 executive orders, but also dozens of presidential memoranda, which have been called “executive orders by another name.” Once, he used a memorandum to change an executive order.
And he’s created a brand new form of directive known as a national security presidential memorandum.
All modern presidents have used these tools to manage the executive branch and set policy. But as Congress has become more deadlocked, presidents are increasingly turning to executive action as a substitute for legislation.
The prolific and controversial use of executive action under presidents Obama and Trump has drawn greater scrutiny to the form and format — not to mention the content — of various presidential directives.
So what’s the difference? Increasingly, there isn’t much of one.
“They are kind of fuzzy, because there’s a ton of overlap in their use. They’re not defined by statute, but they’re various tools in a toolbox for a president to use,” said Andrew Wright, a professor at the Savannah Law School who worked on executive orders as an associate counsel in the Obama White House.
“For the most part, the vehicles — a proclamation, executive order, presidential memorandum, national security directive or even in a signing statement — are not nearly as important as the claims they’re making.”
But there are some subtle differences that can help make sense of what a president is trying to accomplish with his various executive actions.
Proclamations are the oldest form of presidential directive, and theoretically the most sweeping. They’re often directed at citizens — not just government officials — and may call on them to take a specific action.
President George Washington used a proclamation to suppress the Whiskey Rebellion. President Abraham Lincoln used the Emancipation Proclamation to free slaves in the deep south. President George W. Bush used a proclamation to declare a state of national emergency after the 2001 terrorist attacks. (It remains in effect.)
But many modern proclamations are largely ceremonial. Congress requires or requests the president to issue proclamations for 45 different federal holidays and observances, from major ones like Memorial Day to obscure ones like Loyalty Day. Those proclamations will often call on the public to observe the day “with the appropriate programs, ceremonies, and activities.” Presidents also use proclamations to order federal flags to be flown at half staff.
Proclamations are numbered and must be published in the Federal Register, the official journal of the executive branch, where they take precedence over all other presidential directives and agency regulations.
President Trump is wasting no time wielding his presidential pen. Here’s what you should know about executive orders.
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Like proclamations, executive orders have the force of law — but only on the executive branch. They’re also numbered and published in the Federal Register.
Presidents use them to establish councils and commissions, set administration-wide policy on hiring or purchasing, or give federal employees a day off.
Because of their formality, proclamations and executive orders have some rules that other presidential directives don’t.
In 1962, President John F. Kennedy signed an executive order about executive orders. It laid out specific rules on style, spelling — even the size of paper they’re printed on and the width of the margins. More importantly, it set up a system for circulating drafts of orders within the administration.
Under a law passed by Congress in 2014, the White House budget director must submit a public report on the cost of all executive orders.
Executive orders can be rescinded or amended by an act of Congress, a court order or another executive order — although Trump used a presidential memorandum to amend his second travel ban order.
Presidential memoranda were once considered a lesser form of directive and were often overlooked. But in recent years, they’ve started to look and act much more like executive orders.
Traditionally, presidents have used memoranda to give formal orders to cabinet secretaries. That order could be as routine as preparing a report, or as significant as drawing up new regulations on wage and hour laws, firearms or coal power plants.
But memoranda usually don’t do anything in and of themselves. They instruct subordinates to take action. But that also means fewer legal hurdles to clear.
“Sometimes a presidential memorandum is easier to get done,” Wright said.
National Security Presidential Memoranda
NSPMs are a brand new form of presidential directive in the Trump administration, but they have their roots in similar national security directives dating back to President Harry Truman.
Since then, they’ve gone by different names. President Barack Obama called them Presidential Policy Directives (PPDs). President George W. Bush called them National Security Presidential Directives (NPSDs). President Clinton called them Presidential Decision Directives (PDDs). President Nixon called them National Security Decision Memoranda.
They generally operate similar to executive orders, but in the area of national security.
One big difference with Trump’s NSPMs is that he’s ordered them to be published in the Federal Register, a move that makes them more transparent than ever before.
But it also appears that he’s kept at least one of these directives secret.
On June 16, Trump signed an order known as NSPM-5 changing U.S. policy toward Cuba. On Oct. 5, he signed an order known as NSPM-7 to set up a system to track people who are national security threats.
There was no NSPM-6 ever published. The president’s National Security Council declined to comment on its contents.