 Legal Effectiveness of a Presidential Directive, as Compared to
                       an Executive Order
A presidential d irective has the sam e substantive legal effect as an executive order. It is the substance
   o f the presidential action that is determ inative, not the form o f the docum ent conveying that action.

Both an executive order and a presidential directive rem ain effective upon a change in adm inistration,
   unless o therw ise specified in the docum ent, and both continue to be effective until subsequent
   presidential action is taken.

                                                                                                  Ja n u a ry 2 9, 2 0 0 0


                 M   em orandum    O p in io n   fo r t h e   C ou n sel   t o th e   P r e s id e n t


   You have asked our opinion whether there is any substantive legal difference
between an executive order and a presidential directive. As this Office has consist­
ently 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 styled other
than as an executive order. We are further of the opinion that a presidential direc­
tive would not automatically lapse upon a change o f administration; as with an
executive order, unless otherwise specified, a presidential directive would remain
effective until subsequent presidential action is taken.
   We are aware of no basis for drawing a distinction as to the legal effectiveness
of a presidential action based on the form or caption of the written document
through which that action is conveyed. Cf. Memorandum for Harold Judson,
Assistant Solicitor General, from William H. Rose, Re: Statement o f Policy
Regarding Certain Strategic M aterials (Aug. 28, 1945) (concluding that a letter
from. President Roosevelt stating the government’s policy “ constitute[d] a Presi­
dential directive having the force and effect of law,” notwithstanding its infor­
mality of form). It has been our consistent view that it is the substance of a presi­
dential determination or directive that is controlling and not whether the document
is styled in a particular manner. This principle plainly extends to the legal
effectiveness of a document styled as a “ presidential directive.”
   Moreover, as with an executive order, a presidential directive would not lose
its legal effectiveness upon a change of administration. Rather, in our view,
because a presidential directive issues from the Office of the Chief Executive,
it would remain in force, unless otherwise specified, pending any future presi­
dential action. Cf. Memorandum for Michael J. Egan, Associate Attorney General,
from John M. Harmon, Acting Assistant Attorney General, Office of Legal
Counsel, Re: P roposed Amendments to 28 CFR 16, Subpart B (Apr. 21, 1977)
(raising possible concerns about a proposal to delegate to the Deputy Attorney
General certain authorities to invoke executive privilege because such a delegation
could potentially be inconsistent with a 1969 Memorandum from President Nixon
on executive privilege). Indeed, Presidents have frequently used written forms

                                                       29
                            Opinions o f the Office o f Legal Counsel in Volume 24


other than executive orders to take actions that were intended to have effect during
a subsequent administration. For example, delegations of presidential authority
under 3 U.S.C. §301 have been made pursuant to presidential memoranda.1 See
also, e.g., Memorandum Establishing a Federal Energy Management Program, 3
Pub. Papers of Gerald R. Ford 1015 (1976) (including a directive to be carried
out for FY 1977).
   You have also inquired whether a presidential directive could be published in
the Federal Register. It is our understanding that any presidential determination
or directive can be published in the Federal Register, regardless of how it is styled.
At present, a range of presidential determinations and directives styled other than
as executive orders are routinely published in the Federal Register. See, e.g., Presi­
dential Determination Pursuant to Section 2(c)(1) of the Migration and Refugee
Assistance Act of 1962, as amended, 64 Fed. Reg. 65,653 (1999); Report to the
Congress Regarding Conditions in Burma and U.S. Policy Toward Burma, 64 Fed.
Reg. 60,647 (1999) (memorandum directing the Secretary of State to transmit
report to Congress). We see no reason to believe that the Federal Register would
decline to publish the contemplated directive.2

                                                                        RANDOLPH D. MOSS
                                                                 Acting Assistant Attorney General
                                                                      Office o f Legal Counsel




   1At various points over time, Presidents have delegated presidential functions both by executive order and by
presidential memorandum Compare Delegation o f A uthonty Under Section 1401(b) of the National Defense
A uthonzation Act for Fiscal Year 2000 (Public Law 106-^5), 65 Fed. Reg. 3119 (2000), with Exec Order No
10250 (1951), reprinted as am ended in 3 U S C. §301 app (1994) (delegation o f functions to the Secretary of
the Intenor).
   2 Because the decision w hether an item can be published is made by the Office o f the Federal Register, we would
suggest confirm ing this with that office


                                                        30
