Civics & Government · 9th Grade · The Executive Branch and Bureaucracy · Weeks 10-18

Executive Orders and Presidential Memoranda

Analyzing the use of unilateral actions to achieve policy goals without Congress.

• Common Core State Standards
• C3: D2.Civ.4.9-12
• C3: D2.Civ.13.9-12

About This Topic

Article II of the Constitution grants the President executive power and directs that laws be "faithfully executed," but it does not specifically authorize executive orders. Yet presidents have issued them since George Washington. An executive order is a signed directive to the federal executive branch that carries the force of law unless overturned by Congress or the courts. Presidential memoranda serve a similar function with slightly less formal status. Together, these tools allow presidents to act quickly on policy priorities without waiting for legislation.

The use of executive orders has grown significantly in recent decades as partisan gridlock has made legislation harder to pass. Presidents of both parties have used them to reshape immigration policy, adjust environmental regulations, change federal contracting rules, and direct military operations. Critics argue that broad executive orders usurp legislative authority; supporters argue they represent a legitimate exercise of constitutional executive power. Both sides can point to Supreme Court precedent.

For 9th grade students, this topic connects constitutional text, historical precedent, and contemporary controversy in concrete ways. Active learning approaches work well because the normative questions here -- whether a given order is legitimate -- require students to reason from constitutional principles and pragmatic governance concerns simultaneously.

Key Questions

1. Differentiate whether executive orders are an efficient tool of governance or a bypass of democracy.
2. Explain how the other branches can check an unconstitutional executive order.
3. Analyze why the use of executive orders has increased in recent decades.

Learning Objectives

• Analyze the constitutional basis for executive orders and presidential memoranda, citing Article II of the Constitution.
• Evaluate the extent to which executive orders and presidential memoranda serve as efficient tools of governance versus a bypass of democratic processes.
• Explain the mechanisms by which the judicial and legislative branches can check the power of executive orders.
• Compare the frequency and scope of executive order usage across different presidential administrations.
• Synthesize arguments for and against the expanded use of unilateral presidential actions in contemporary policymaking.

Before You Start

The Constitutional Framework of US Government

Why: Students need a foundational understanding of the three branches of government and their respective powers as outlined in the Constitution.

The Legislative Process

Why: Understanding how laws are made by Congress is essential for analyzing how executive orders can bypass or complement this process.

Key Vocabulary

Executive Order	A directive issued by the President of the United States to federal agencies that manages operations of the federal government. It has the force of law.
Presidential Memorandum	A written directive from the President to executive branch officials that often carries less formality than an executive order but serves a similar purpose in directing policy.
Unilateral Action	An action taken by the President or the executive branch without the explicit approval or involvement of Congress.
Checks and Balances	The system established by the Constitution that prevents any one branch of government from becoming too powerful by giving each branch ways to limit the powers of the other two.

Watch Out for These Misconceptions

Common Misconception

Executive orders have always been controversial.

What to Teach Instead

Most executive orders are routine administrative directives -- personnel policies, federal contracting rules, reorganization instructions -- that attract no controversy at all. The high-profile, policy-shaping orders that dominate news coverage represent a small fraction of total orders issued. Reviewing the range of orders across administrations helps students separate the exceptional from the ordinary.

Common Misconception

Congress cannot do anything about an executive order.

What to Teach Instead

Congress has multiple tools to respond: it can pass legislation that supersedes the order, withhold funding needed to implement it, or amend the underlying statute the President relied on. Courts can also strike down orders that exceed statutory or constitutional authority, as the Supreme Court did in Youngstown Sheet & Tube Co. v. Sawyer (1952). The order is legally binding but not immune to challenge.

Common Misconception

Executive orders are a recent innovation tied to one political party.

What to Teach Instead

Presidents from Washington through the present have used executive orders. FDR issued over 3,700 -- by far the most in history. The use of executive orders tends to correlate with divided government and legislative difficulty, not with a specific party. Providing data across administrations helps students see the structural pattern rather than a partisan one.

Active Learning Ideas

Document Analysis: Executive Orders Across History

Provide brief summaries of five executive orders spanning eras: the legal basis for Lincoln's Emancipation Proclamation, FDR's Japanese American internment order, Truman's desegregation of the military, and a recent immigration or environmental order. Small groups assess each using a consistent rubric: authority cited, Congress's response, court outcome, and historical legacy.

40 min·Small Groups

Formal Debate: Governance Tool or Democratic Bypass?

Half the class prepares arguments that executive orders are efficient tools for unified executive action; the other half argues they bypass democratic deliberation. After the formal exchange, students must reach a written consensus on what conditions -- if any -- justify a major executive order without prior Congressional approval.

45 min·Whole Class

Think-Pair-Share: Is This Constitutional?

Present three presidential action scenarios -- one clearly within executive authority, one clearly outside it, one genuinely ambiguous. Students write individual assessments first, then compare reasoning with a partner. The debrief introduces Justice Jackson's Youngstown tri-part framework as a tool for constitutional analysis that students can apply to future scenarios.

25 min·Pairs

Role Play: Advising the President

Each student plays a presidential advisor presented with a policy goal that Congress has refused to pass. They write a one-paragraph memo: can the President achieve this goal by executive order? If yes, what is the legal justification? If no, what are the alternatives? A panel of "legal advisors" reviews the strongest proposals and the class evaluates the reasoning.

35 min·Individual

Real-World Connections

• The Department of Homeland Security utilizes presidential memoranda to direct immigration policy and border security measures, impacting communities and individuals across the country.
• Environmental Protection Agency regulations, often initiated or modified through executive orders concerning emissions standards or land use, directly affect industries like manufacturing and agriculture, as well as public health outcomes in cities like Los Angeles.
• Supreme Court cases, such as Youngstown Sheet & Tube Co. v. Sawyer, have established precedents for reviewing the constitutionality of executive orders, shaping the balance of power between the President and Congress.

Assessment Ideas

Quick Check

Present students with a hypothetical scenario involving a presidential directive. Ask them to identify whether it is more likely an executive order or a presidential memorandum and explain their reasoning based on the directive's scope and formality.

Discussion Prompt

Facilitate a class debate using the prompt: 'Resolved, that the increased use of executive orders in recent decades represents a necessary adaptation to partisan gridlock, rather than a threat to democratic principles.' Assign students roles as proponents or opponents to prepare arguments.

Exit Ticket

Ask students to write two sentences explaining one way Congress can check an executive order and one sentence explaining how the Supreme Court can check an executive order.

Frequently Asked Questions

What is an executive order and how does it become law?

An executive order is a presidential directive to the federal executive branch that carries the force of law within the scope of the President's constitutional and statutory authority. It does not require Congressional approval. It takes effect when signed and published in the Federal Register. Congress can override it through legislation, and courts can strike it down if it exceeds the President's authority.

Can a president undo a previous president's executive orders?

Yes. Executive orders can be revoked or modified by any subsequent president. A new administration frequently reviews and reverses priority orders from its predecessor. This reversibility is a significant limitation compared to legislation -- executive orders lack the durability of a law passed by Congress and signed across multiple administrations.

What are the constitutional limits on presidential executive orders?

Executive orders cannot violate the Constitution, exceed Congress's delegated authority, or contradict existing federal law. The Supreme Court established a key framework in Youngstown Sheet & Tube Co. v. Sawyer (1952): presidential power is strongest when acting with Congressional authorization, uncertain when Congress is silent, and at its lowest ebb when acting against Congressional will.

How does active learning help students evaluate executive orders?

Executive orders make constitutional principles visible in real policy disputes. When students analyze specific orders -- what authority was claimed, how courts ruled, how Congress responded -- they practice the same reasoning a lawyer, judge, or engaged citizen would use. Structured debates over contested orders build evaluative skills that civics education aims to develop and that reading case summaries alone cannot provide.