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Executive Order

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Definition[]

An Executive Order is

“ an order of the President of the United States or the Chief Executive of a state that has the force of law and that is published in a manner permitting regular public access.[1] ”

Overview[]

Because the federal government is a government of limited powers, executive actions must find support in either: (1) a power enumerated under Article II of the U.S. Constitution; or (2) authority delegated to the executive by Congress pursuant to one or more of Congress' enumerated Article I powers. Within this framework, some actions are impliedly authorized as means to achieve ends authorized by enumerated powers.[2]

The Supreme Court's separation-of-powers jurisprudence makes clear that the President may occasionally act pursuant to his inherent powers under the Constitution without express or implied authorization from Congress. These powers include the President's war and foreign affairs powers.

Executive Orders

“ are limited in at least three important ways:
  • Though they are authoritative statements of presidential direction, their implementation must be consistent with existing statutory law.
  • Executive orders have the force of law, but only with respect to executive branch agencies.
  • Executive orders have no direct impact or force on private sector entities, although because they change the behavior of government, they can have considerable indirect impact."[3]
 ”

National security information[]

The Supreme Court has never directly addressed the extent to which Congress may constrain the executive branch's power in this area. Citing the President's constitutional role as Commander-in-Chief,[4] the Supreme Court has repeatedly stated in dicta that

“ [the President's] authority to classify and control access to information bearing on national security . . . flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.[5] ”

This language has been interpreted by some to indicate that the President has virtually plenary authority to control classified information. On the other hand, the Supreme Court has suggested that "Congress could certainly [provide] that the Executive Branch adopt new [classification procedures] or [establish] its own procedures — subject only to whatever limitations the Executive Privilege may be held to impose on such congressional ordering."[6]

Congress has directed the President to establish procedures governing the access to classified material so that no person can gain such access without having undergone a background check.[7]

Congress also directed the President, in formulating the classification procedures, to adhere to certain minimum standards of due process with regard to access to classified information.[8] These include the establishment of uniform procedures for, inter alia, background checks, denial of access to classified information, and notice of such denial.[9] The statute also explicitly states that the agency heads are not required to comply with the due process requirement in denying or revoking an employee's security clearance where doing so could damage national security, although the statute directs agency heads to submit a report to the congressional intelligence committees in such a case.[10]

With the authority to determine classification standards vested in the President, these standards tend to change whenever a new administration takes control of the White House.[11] The differences between the standards of one administration and the next have often been dramatic. As one congressionally authorized commission put it in 1997:

“ The rules governing how best to protect the nation's secrets, while still insuring that the American public has access to information on the operations of its government, past and present, have shifted along with the political changes in Washington. Over the last fifty years, with the exception of the Kennedy Administration, a new executive order on classification was issued each time one of the political parties regained control of the Executive Branch. These have often been at variance with one another . . . at times even reversing outright the policies of the previous order.[12] ”

Various congressional committees have investigated ways to bring some continuity to the classification system and to limit the President's broad powers to shield information from public examination.[13] In 1966, Congress passed the Freedom of Information Act (FOIA), creating a presumption that government information will be open to the public unless it falls into one of FOIA's exceptions. One exception covers information that, under executive order, must be kept secret for national security or foreign policy reasons.[14]

In 2000, Congress enacted the Public Interest Declassification Act of 2000,[15] which established the Public Interest Declassification Board to advise the President on matters regarding the declassification of certain information, but the act expressly disclaims any intent to restrict agency heads from classifying or continuing the classification of information under their purview, nor does it create any rights or remedies that may be enforced in court.[16] Most recently, Congress passed the Reducing Over-Classification Act, [Pub. L. No.] 111-258, which, among other things, requires executive branch agencies' inspectors general to conduct assessments of their agencies' implementation of classification policies.[17]

Specific Executive Orders[]

There are a number of Executive Orders that have been issued by successive Presidents, which relate to information technology and information law. Those discussed in this Wiki include (in reverse chronological order):

Joseph P. Biden (2021-) (EO 13985-)[]

  • Executive Order 14036: Promoting Competition in the American Economy:
  • Executive Order 14034: Protecting Americans' Sensitive Data From Foreign Adversaries (June 9, 2021).
  • Executive Order 14028: Improving the Nation's Cybersecurity (May 12, 2021).
  • Executive Order 14007: President's Council of Advisors on Science and Technology (Jan. 27, 2021).

Donald J. Trump (2017-2021) (EO 13765-13984)[]

  • Executive Order 13960: Promoting the Use of Trustworthy Artificial Intelligence in the Federal Government (Dec. 20, 2020).
  • Executive Order 13925: Preventing Online Censorship (May 28, 2020) (revoked by Executive Order 14029 of May 14, 2021).
  • Executive Order 13920: Executive Order on Securing the United States Bulk-Power System (May 1, 2020).
  • Executive Order 13873: Securing the Information and Communications Technology and Services Supply Chain, 84 Fed. Reg. 22689-92 (May 15, 2019).
  • Executive Order 13859: Maintaining American Leadership in Artificial Intelligence, 84 Fed. Reg. 3967 (Feb. 11, 2019).
  • Executive Order 13821: Streamlining and Expediting Requests To Locate Broadband Facilities in Rural America, 83 Fed. Reg. 1507 (Jan. 8, 2018).
  • Executive Order 13800: Strengthening the Cybersecurity of Federal Networks and Critical Infrastructure, 82 Fed. Reg. 22391 (May 11, 2017).
  • Executive Order 13794: Establishment of the American Technology Council, 82 Fed. Reg. 20811 (May 3, 2017).

Barack Obama (2009-2017) (EO 13489-13764)[]

  • Executive Order 13757: Taking Additional Steps to Address the National Emergency with Respect to Significant Malicious Cyber-Enabled Activities (Dec. 28, 2016).
  • Executive Order 13741: Amending Executive Order 13467 To Establish the Roles and Responsibilities of the National Background Investigations Bureau and Related Matters (Sept. 29, 2016).
  • Executive Order 13718: Commission on Enhancing National Cybersecurity (Feb. 9, 2016).
  • Executive Order 13702: Creating a National Strategic Computing Initiative (July 29, 2015).
  • Executive Order 13694: Blocking the Property of Certain Persons Engaging in Significant Malicious Cyber-Enabled Activities (Apr. 1, 2015).
  • Executive Order 13691: Promoting Private Sector Cybersecurity Information Sharing (Feb. 13, 2015).
  • Executive Order 13642: Making Open and Machine Readable the New Default for Government Information (May 9, 2013).
  • Executive Order 13636: Improving Critical Infrastructure Cybersecurity (Feb. 19, 2013).
  • Executive Order 13618: Assignment of National Security and Emergency Preparedness Communications Functions (July 6, 2012).
  • Executive Order 13616: Accelerating Broadband Infrastructure Deployment (June 14, 2012).
  • Executive Order 13589: Promoting Efficient Spending (Nov. 9, 2011).
  • Executive Order 13587: Structural Reforms to Improve the Security of Classified Networks and the Responsible Sharing and Safeguarding of Classified Information (Oct. 7, 2011).
  • Executive Order 13584: Developing an Integrated Strategic Counterterrorism Communications Initiative and Establishing a Temporary Organization to Support Certain Government-wide Communications Activities Directed Abroad (Sept. 9, 2011).
  • Executive Order 13576: Delivering an Efficient, Effective, and Accountable Government (June 13, 2011).
  • Executive Order 13571: Streamlining Service Delivery and Improving Customer Service (Apr. 27, 2011).
  • Executive Order 13565: Establishment of the Intellectual Property Enforcement Advisory Committees (Feb. 8, 2011).
  • Executive Order 13563: Improving Regulation and Regulatory Review (Jan. 18, 2011).
  • Executive Order 13558: Export Coordination Enforcement Center (Nov. 9, 2010).
  • Executive Order 13556: Controlled Unclassified Information (Nov 4, 2010).
  • Executive Order 13549: Classified National Security Information Program for State, Local, Tribal, and Private Sector Entities (Aug. 18, 2010).
  • Executive Order 13539: President's Council of Advisors on Science and Technology, (Apr. 21, 2010).
  • Executive Order 13526: Classified National Security Information (Dec. 29, 2009).
  • Executive Order 13497: Revocation of Certain Executive Orders Concerning Regulatory Planning and Review (Feb. 4, 2009).

George W. Bush (2001-2009) (EO 13198-13488)[]

  • Executive Order 13478: Amendments To Executive Order 9397 Relating To Federal Agency Use of Social Security Numbers (Nov. 18, 2008).
  • Executive Order 13475: Further Amendments To Executive Orders 12139 And 12949 in Light of the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (Oct. 7, 2008).
  • Executive Order 13470: Further Amendments to Executive Order 12333, United States Intelligence Activities (July 30, 2008).
  • Executive Order 13467: Reforming Processes Related to Suitability for Government Employment, Fitness for Contractor Employees, and Eligibility for Access to Classified National Security Information (June 30, 2008).
  • Executive Order 13462: President's Intelligence Advisory Board and Intelligence Oversight Board (Feb. 29, 2008).
  • Executive Order 13407: Public Alert and Warning System (June 26, 2006).
  • Executive Order 13402: Strengthening Federal Efforts To Protect Against Identity Theft (May 10, 2006), amended by Executive Order 13414.
  • Executive Order 13392: Improving Agency Disclosure of Information (Dec. 14, 2005).
  • Executive Order 13388: Further Strengthening the Sharing of Terrorism Information to Protect Americans (Oct. 25, 2005).
  • Executive Order 13381: Strengthening Processes Relating to Determining Eligibility for Access to Classified National Security Information (June 27, 2005).
  • Executive Order 13356: Strengthening the Sharing of Terrorism Information To Protect Americans (Aug. 27, 2004).
  • Executive Order 13355: Strengthened Management of the Intelligence Community (Aug. 27, 2004).
  • Executive Order 13354: National Counterterrorism Center (Aug. 27, 2004).
  • Executive Order 13353: Establishing the President's Board on Safeguarding Americans’ Civil Liberties (Aug. 27, 2004).
  • Executive Order 13349: Amending Executive Order 13226 to Designate the President's Council of Advisors on Science and Technology to Serve as the National Nanotechnology Advisory Panel (Apr. 23, 2004).
  • Executive Order 13335: Incentives for the Use of Health Information Technology and Establishing the Position of the National Health Information Technology Coordinator (Apr. 24, 2004).
  • Executive Order 13311: Homeland Security Information Sharing (July 29, 2003).
  • Executive Order 13292: Further Amendment to Executive Order 12958, as amended, Classified National Security Information (Mar. 25, 2003).
  • Executive Order 13286: Amendment of Executive Orders, and Other Actions, in Connection With the Transfer of Certain Functions to the Secretary of Homeland Security (Feb. 28, 2003).
  • Executive Order 13284: Amendment of Executive Orders, and Other Actions, in Connection With the Establishment of the Department of Homeland Security (Jan. 23, 2003).
  • Executive Order 13283: Establishing the Office of Global Communications (Jan. 21, 2003).
  • Executive Order 13233: Limited Access to the Records of Former Presidents (Nov. 1, 2001).
  • Executive Order 13231: Critical Infrastructure Protection in the Information Age (Oct. 16, 2001), as amended.
  • Executive Order 13228: Establishing the Office of Homeland Security and the Homeland Security Council (Oct. 8, 2001).
  • Executive Order 13226: President's Council of Advisors on Science and Technology (Sept. 30, 2001).
  • Executive Order 13218: 21st Century Workforce Initiative (June 20, 2001).

William J. Clinton (1993-2001) (EO 12834-13197)[]

George H.W. Bush (1989-1993) (EO 12668-12833)[]

Ronald Reagan (1981-1989) (EO 12287-12667)[]

  • Executive Order 12656: Assigmment of Emergency Preparedness Responsibilities (Nov. 18, 1988).
  • Executive Order 12600: Predisclosure Procedures for Confidential Commercial Information (June 23, 1987).
  • Executive Order 12591: Facilitating Access to Science and Technology (Apr. 10, 1987).
  • Executive Order 12537: President's Foreign Intelligence Advisory Board (Oct. 28, 1985).
  • Executive Order 12472: Assignment of National Security and Emergency Preparedness Telecommunications Functions (Apr. 3, 1984), as amended.
  • Executive Order 12382: President's National Security Telecommunications Advisory Committee, as amended.
  • Executive Order 12356: National Security Information (Apr. 2, 1982).
  • Executive Order 12334: President's Intelligence Oversight Board (Dec. 4, 1981).
  • Executive Order 12333: United States Intelligence Activities (Dec. 4, 1981), as amended by Executive Order 13470.
  • Executive Order 12331: President's Foreign Intelligence Advisory Board (Oct. 20, 1981).

Jimmy Carter (1977-1981) (EO 11967-12286)[]

Gerald Ford (1974-1977) (EO 11798-11966)[]

Richard Nixon (1969-1974) (EO 11452-11797)[]

  • Executive Order 11717: Transferring Certain Functions from the Office of Management and Budget to the General Services Administration and the Department of Commerce (May 9, 1973).
  • Executive Order 11652: Classification and Declassification of National Security Information and Material (Mar. 8, 1972).
  • Executive Order 11556: Assigning Telecommunications Functions (Sept. 4, 1970).
  • Executive Order 11460: Establishing the President's Intelligence Advisory Board (Mar. 20, 1969).

Lyndon B. Johnson (1963-1969) (EO 11128-11451)[]

  • Executive Order 11215: Establishing the President's Commission on the Patent System (Apr. 8, 1965).
  • Executive Order 11191: Providing for the Carrying Out of Certain Provisions of the Communications Satellite Act of 1962 (Jan. 4, 1965).

John F. Kennedy (1961-1963) (EO 10914-11127)[]

  • Executive Order 10995: Assigning Telecommunications Management Functions (Feb. 16, 1962).
  • Executive Order 10938: Establishing the President's Foreign Intelligence Advisory Board (May 4, 1961).
  • Executive Order 10930: Abolishing the Government Patents Board and Providing for the Performance of Its Functions (Mar. 24, 1961).

Dwight D. Eisenhower (1953-1961) (EO 10432-10913)[]

  • Executive Order 10865: Safeguarding Classified Information Within Industry (1960).
  • Executive Order 10656: Establishing the President's Board of Consultants on Foreign Intelligence Activities (Feb. 6, 1956).
  • Executive Order 10450: Security Requirements for Government Employment (May 27, 1953).

Harry S. Truman (1945–1953)[]

  • Executive Order 10421: Providing for the Physical Security of Facilities Important to the National Defense (Dec. 31, 1952).
  • Executive Order 10110: President's Communications Policy Board (Feb. 17, 1950).
  • Executive Order 10096: Providing for a Uniform Patent Policy for the Government With Respect to Inventions Made by Government Employees and for the Administration of Such Policy (Jan. 23, 1950).
  • Executive Order 9608: Providing for the Termination of the Office of War Information, and for the Disposition of Its Functions and of Certain Functions of the Office of Inter-American Affairs (Aug. 31, 1945).

Franklin D. Roosevelt (1933–1945)[]

  • Executive Order 9424: Establishing in the United States Patent Office a Register of Government Interest in Patents and Applications for Patents (Feb. 18, 1944).
  • Executive Order 9397: Numbering System for Federal Accounts Relating to Individual Persons (Nov. 22, 1943).
  • Executive Order 8381: Defining Certain Vital Military and Naval Installations and Equipment (Mar. 22, 1940).

References[]

  1. ↑ 28 C.F.R. Part 20, §20.3(j).
  2. ↑ See McCulloch v. Maryland, 17 U.S. 316 (1819) (full-text) (upholding Congress' creation of a National Bank as a constitutionally valid means by which to exercise enumerated Article I powers).
  3. ↑ Engaging Privacy and Information Technology in a Digital Age, at 147.
  4. ↑ U.S. Const., art. II, §2.
  5. ↑ Department of the Navy v. Egan, 484 U.S. 518, 527 (1988) (full-text) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 890 (1961). In addition, courts have also been wary to second-guess the executive branch in areas of national security. See, e.g., Haig v. Agee, 453 U.S. 280, 291 (1981) (full-text) ("Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention."). The Court has suggested, however, that it might intervene where Congress has provided contravening legislation. Egan at 530 ("Thus, unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.”) (emphasis added).
  6. ↑ EPA v. Mink, 410 U.S. 73, 83 (1973) (full-text).
  7. ↑ Counterintelligence and Security Enhancement Act of 1994, Title VIII of [Pub. L. No.] 103-359 (codified at 50 U.S.C. §435 et seq.). Congress has also required specific regulations regarding personnel security procedures for employees of the National Security Agency, [Pub. L. No] 88-290, 78 Stat. 168, codified at 50 U.S.C. §§831-835. Congress has also prohibited the Department of Defense from granting or renewing security clearances for officers, employees, or contract personnel who had been convicted of a crime (and served at least one year prison time) and for certain other reasons, with a waiver possible only in "meritorious cases," [Pub. L. No.] 106-398 §1, Div. A, Title X, §1071(a), 114 Stat. 1654, 10 U.S.C. §986.
  8. ↑ 50 U.S.C. §435(a).
  9. ↑ Id.
  10. ↑ Id. §435(b). The House Conference Report that accompanied this legislation in 1994 suggests that Congress understood that the line defining the boundaries of executive and legislative authority in this area is blurry at best. The conferees made explicit reference to the Egan case, expressing their desire that the legislation not be understood to affect the President's authority with regard to security clearances. See H.R. Rep. 103-753, at 54.
  11. ↑ See Report of the Commission on Protecting and Reducing Government Secrecy, S. Doc. No. 105-2, at 11 (1997).
  12. ↑ Id.
  13. ↑ See, e.g., Availability of Information from Federal Departments and Agencies: Hearings Before the House Committee on Government Operations, 85th Cong. (1955).
  14. ↑ 5 U.S.C. §552(b)(1). The Supreme Court has honored Congress's deference to executive branch determinations in this area. EPA v. Mink, 410 U.S. 73 (1973). Congress, concerned that the executive branch may have declared some documents to be "national security information" that were not vital to national security, added a requirement that such information be "properly classified pursuant to an executive order." 5 U.S.C. §552(b)(1)(B).
  15. ↑ [Pub. L. No. 106-567, title VII, Dec. 27, 2000, 114 Stat. 2856, 50 U.S.C. §435 note.
  16. ↑ Id. §§705 and 707.
  17. ↑ [Pub. L. No.] 111-258, §6, codified at 50 U.S.C. §435 note.

Source[]

See also[]

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