The Difference Between Executive Order v. Executive Action
United States Presidents issue executive orders to help officers and agencies of the executive branch manage the operations within the federal government itself. Executive orders have the full force of law when they take authority from a power granted directly to the Executive by the Constitution, or are made in pursuance of certain Acts of Congress that explicitly delegate to the President some degree of discretionary power (delegated legislation).
Like both legislative statutes and regulations promulgated by government agencies, executive orders are subject to judicial review, and may be struck down if deemed by the courts to be unsupported by statute or the Constitution. Major policy initiatives usually require approval by the legislative branch, but executive orders have significant influence over the internal affairs of government, deciding how and to what degree laws will be enforced, dealing with emergencies, waging war, and in general fine-tuning policy choices in the implementation of broad statutes.
Executive memoranda are similar to executive orders in that they carry legal weight allowing the president to direct government officials and agencies. But executive memoranda are typically not published in the Federal Register unless the president determines the rules have “general applicability and legal effect.”
Tom Murse notes how the term executive action itself is vague and can be used to describe almost anything the president calls on Congress or his administration to do. Executive actions are any informal proposals or moves by the president. Most executive actions carry no legal weight. Those that do actually set policy can be invalidated by the courts or undone by legislation passed by Congress.
Presidents favor the use of nonbinding executive actions when the issue is controversial or sensitive. President Obama is the first modern president to use executive actions in lieu of executive orders or executive memoranda. This means, unlike recent presidents, Obama is issuing “I wish” edicts that neither have the force of law necessarily nor can’t be undone by courts, Congress or future Presidents. That doesn’t seem like the move of a dictator or a tyrant.