President Biden recently released an executive action that has been in the news. So is there a difference between executive actions and executive orders? Actually, yes there is.
Executive orders are published in the Federal Register and are legally binding. They give presidents the power to create unilateral directives, but they can be overturned if a court rules they are unconstitutional. Executive orders remain in place until rescinded or modified by a president, reversed by a court or nullified by legislation. They have been part of the presidency from its earliest days. A notable Executive Order was the Emancipation Proclamation.
Executive actions, by contrast, do not have the same authority. They are nonbinding proposals by the President. They’re not published in the Federal Register and aren’t subject to legal review. But these executive actions often draw sharp reactions. This is because executive actions are often used for controversial issues. They have only been in common use since the 21st century.
Other common types of presidential directives are presidential memoranda and proclamations. Memoranda are similar to executive orders in that they are legally binding but they are not usually published in the Federal Register. Proclamations are published in the Federal Register as required by the Federal Register Act of 1935. The first presidential proclamation was in 1789 declaring a day of Thanksgiving.
The authority to issue executive orders and actions are not in the Constitution but have become an inherent part of presidential power. Article II, Section 1, Clause 1 of the Constitution states: "The executive Power shall be vested in a President of the United States of America." Sections 2 and 3 describe the various powers and duties of the president, including "he shall take Care that the Laws be faithfully executed."
Presidential Directives: Background and Overview
Executive Orders: An Introduction
Biden Administration Presidential Actions
Historical Use of Executive Orders, 1789 - 2017