The Obama Administration issued policy statements this week on critical infrastructure protection and cyber security, including measures to encourage information sharing with the private sector and other steps to improve policy coordination. Curiously, the Administration issued both an Executive order and a Presidential directive devoted to these topics.
But the simultaneous release of the two types of Presidential instruction on overlapping themes raises the question: What is the difference between an Executive Order and a Presidential Directive?
“There are probably two significant differences between an EO and a PD, at least to my understanding,” said Harold Relyea, who served for decades as a Specialist in American National Government at the Congressional Research Service.
“First, in almost all cases, for an EO to have legal effect, it must be published in the Federal Register. This is a statutory requirement. A PD does not have to meet this publication requirement, which means it can more readily be ‘born classified’.”
“Second,” he added, “is the matter of circulation and accountability. EOs are circulated to general counsels or similar agency attorneys, which can be readily accomplished by FR publication. Again, a PD may be more selectively circulated, and this is done through developed routing procedures. Ultimately, EOs are captured not only in the FR, but also in annual volumes (Title 3) of the CFR [Code of Federal Regulations]. PDs are maintained in the files of the NSC staff and, God knows, if anywhere else! I might also add that a form for EOs has been prescribed (in an EO); no form has been prescribed (as far as I know) for PDs.”
A CRS overview of the various types of “Presidential Directives” authored by Dr. Relyea in 2008 is available here.
The Justice Department Office of Legal Counsel wrote in a 2000 opinion that executive orders and directives are equivalent in their force and impact. “As this Office has consistently advised, it is our opinion that there is no substantive difference in the legal effectiveness of an executive order and a presidential directive that is not styled as an executive order.”
For reasons that are not immediately clear, President Obama has issued presidential directives much less frequently than his predecessors. The latest directive, PDD-21, is only the 21st such Obama directive. By comparison, President George W. Bush had issued 42 directives by the first January of his second term. President Clinton had issued 53 directives by the beginning of his second term.