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Since 1789, more than 13,000 executive orders have been issued by presidents to clarify or guide the implementation of statutes and the Constitution. In general, executive orders apply and extend existing protective federal policies to groups, individuals, agencies, and contractors. The use of executive orders has varied widely. President Washington, for example, issued a proclamation insisting that the militia put an end to the Whiskey Rebellion. President Lincoln used executive orders to carry out the Civil War and to issue the Emancipation Proclamation. President Franklin D. Roosevelt issued multiple executive orders to help implement his New Deal legislation, and President Truman integrated the armed forces through an executive order.

This Alert explores how executive orders have been used in the past and offers suggestions for their use as President-elect Obama and the nation work to reform our nation's health care system.

Legal Authority

There is no Constitutional provision explicitly giving the president the power to issue executive orders. Article II, Section 1 ("The executive power shall be vested in a President of the United States of America.") and Article II, Section 3 ("he shall take Care that the Laws be faithfully executed) have been cited as a grant of this power. Even so, presidential executive orders have the legal force of law if made pursuant to an Act of Congress. The authority for such orders can be either inherent or implied. The power is inherent when the executive order is derived from the powers conferred upon the President as commander-in-chief or, in international situations, as head of state; the power is implied when the order represents a reasonable interpretation of the powers expressly granted to the President under the Constitution.

Limits on Presidential Power through Executive Orders

Only two Presidential executive orders have been overturned by the courts. The first involved a 1952 presidential order issued by President Truman, Executive Order 1034, placing the nation's steel mills under federal control in order to prevent labor strikes from affecting steel production and thus hurting the national economy.[1] The U.S. Supreme Court determined that the Truman Order was unconstitutional because it overstepped the boundary between executive and legislative powers, holding that President's power  to issue the order must stem either from an act of Congress or from the Constitution.[2].

The second executive order overturned by a court was issued by President Clinton. Executive Order 12954 prevented the federal government from entering into contracts with organizations that hire replacements for striking employees.[3] The court determined that the Order was regulatory in nature and preempted by the National Labor Relations Act, which guarantees employers the right to hire permanent replacements.[4]

Form and Scope of Executive Orders

An executive order can take different forms. The president can issue a general executive order to direct federal agencies. The president may also issue National Security Directives, which are often classified or sealed due to their content. An executive order can be issued by proclamation and in the form of a ceremonial or symbolic declaration.

Often, presidents will issue executive orders that contain the same or similar language found in previous orders, to extend, follow-up, or reiterate the earlier order. Presidents Truman, Eisenhower, Kennedy, and Johnson, issued orders which prohibit discrimination by government contractors against racial and ethnic minorities. Eisenhower's Executive Order 10479 was a follow-up to President Truman's Executive Order 10308. President Truman's order has been amended and superseded by at least four subsequent executive orders that protect civil rights in furtherance of Constitutional goals.[5]

Examples of Relevant Executive Orders

A.         Executive Orders Expanding Scope of Federal Policy against Discrimination

Requiring equal treatment in the armed forces:  Presidents have often issued executive orders to broaden the scope of a federal policy to apply protections to groups of individuals. President Truman's Executive Order 9981 established equality of treatment and opportunity in the Armed Services regardless of race, religion, or national origin.[6] President Eisenhower's Executive Order 10590 established the President's Committee on Government Employment Policy and prohibited discrimination in federal employment.[7]

Prohibiting discrimination in federal contracts: President Johnson issued Executive Order 11246, to follow-up President Kennedy's Executive Order 10925.[8] The order prohibits a government contractor from participating in discriminatory employment practices, mandates that a contractor not discriminate against any employee or applicant for employment because of race, creed, color, or national origin, and mandates that a contractor take affirmative action to ensure that applicants are treated in their employment in a nondiscriminatory fashion.[9] In 1969, President Nixon issued Executive Order 11478, which prohibits discrimination in the federal civilian workforce of the Postal Service and the Armed Forces.[10]

Prohibiting discrimination based on sexual orientation: In 1998, President Clinton extended the provisions of Executive Order 11478  to "provide for a uniform policy for the Federal Government to prohibit discrimination based on sexual orientation" within the federal civilian workforce and the employees of the government of the District of Columbia.[11]

Prohibiting discrimination based on language: In 2000, President Clinton issued Executive Order 13166, "Improving Access to Services for Persons with Limited English Proficiency." [12]   The Order seeks to remove barriers to participation in federal services and programs by requiring federal agencies to develop a system for persons with Limited English Proficiency (LEP). This executive order enforces Title VI of the Civil Rights Act of 1964 and the prohibition against discrimination based on national origin.

B.         Executive Orders and Health Policy

Mandating health consumer protections: Several executive orders have focused on the need for administrative improvement and guidance related to health care. In 1996, President Clinton issued Executive Order 13017 establishing the Advisory Commission on Consumer Protection and Quality in the Health Care Industry.[13] The duties of the Commission included advising the President on changes occurring in the health care system and recommending measures to promote and ensure health care quality and value and to protect consumers and workers in the health care system.

Expanding health care technologies: In 2006, President Bush issued Executive Order 13410, directing federal agencies to maintain and update health information technology systems for use between federal agencies and non-federal entities.[14] That order also directs agencies that administer or sponsor health insurance programs to share information about the quality of care and prices paid to insurers.

Suggested Future Executive Orders in the Health Care Arena

The Obama Administration might issue executive orders, such as the following, to address problems identified by advocates over the years in the service of their clients.

• Prohibiting discrimination against Persons with Chronic Conditions: Executive Order 11246 (nondiscrimination in federal contracts), could be extended to prohibit federal agencies from discriminating against persons with chronic and/or costly conditions in the services they provide directly or by contract.

• Expanding services to racial and ethnic minorities who are traditionally underserved: Executive Order 13410 (maintain and update HIT systems) could be extended to require federal agencies and non-federal entities to explore how HIT might lessen disparities among racial and ethnic minorities and people with disabilities.

• Prohibiting discrimination based on the language one speaks: Executive Order 13166 (access to services for persons with LEP) could be extended to further protect and address discrimination based on language. The order could also clarify that all non-discrimination provisions, including Title VI, apply to all parts of the Medicare program.

• Increasing transparency in health plan information:   An executive order could require all entities that enter into contracts to provide benefits under federal health care programs to disclose and make public all information regarding beneficiary cost-sharing. The order could also require that such entities disclose to the appropriate agency all required and requested information, including information the entity claims is proprietary.

Conclusion

Over the years, executive orders have proven to be an important tool for presidents in setting federal policy in all fields, including health care policy. Executive orders are likely to survive judicial and political scrutiny when they build on existing federal authority or on a particular constitutional principle and when they do not usurp the normal functions of federal agency regulation. Within these confines, there is ample room for focused, strategic health policy direction that would extend the promise of a stable and dependable health care system.