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My understanding is that senior government officials usually exercise powers by recording their decision to do so, such as by sending an email or signing a piece of paper. For example, the US President might sign a printed copy of an Act or a proposed executive order. That Act or order would usually be subsequently published, and in some cases the law requires the decision to be publicised in a particular way after it is made (e.g. published in the Federal Register). However I am not sure if there are any legal restrictions on the procedure used to initially record the actual making of the decision.

On 23 August 2019, the US President tweeted that 'American companies are hereby ordered' to do something, and retweeted the tweet on the official 'POTUS' Twitter account. It's not clear to me whether this tweet was intended to constitute a formal order or was referring to a separate document which would contain the formal order.

In any case, this made me wonder (as a general proposition) whether it would be possible to dispense with any other more formal document, and just issue the order via Twitter. For example, could the President pardon someone by tweeting 'XYZ is hereby pardoned for all her crimes against the United States'?

Can the US President exercise their powers by tweeting?

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ANSWER: NO. THE US PRESIDENT CANNOT EXERCISE POWER VI TWITTER

IT APPEARS THAT IT MUST BE PUBLISHED IN THE FEDERAL REGISTER TO BE OPERATIVE

"The ability to make such orders is also based on express or implied Acts of Congress that delegate to the president some degree of discretionary power (delegated legislation)." Referencing Contrubis, below. https://en.wikipedia.org/wiki/Executive_order

I don't see exactly how the wikipedia entry author gets his statement from his reference, but Contrubis plus U.S. CODE 3(4)§301 does imply to me that an executive order must be published in the Federal Register. Furthermore, it must be an order to an agency. The President has no authority over private individuals.

"Executive orders and proclamations are directives or actions by the President. When they are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law. ... Executive orders are generally directed to, and govern actions by, Government officials and agencies." John Contrubis. (1999.) Executive Orders and Proclamations. (Congressional Research Service Report for Congress No. 95-722 A) https://en.wikisource.org/wiki/Executive_Orders_and_Proclamations#1

U.S. Code Title 3 Chapter 4 §301 - General authorization to delegate functions; publication of delegations

"The President of the United States is authorized to designate and empower the head of any department or agency in the executive branch, or any official thereof who is required to be appointed by and with the advice and consent of the Senate, to perform without approval, ratification, or other action by the President (1) any function which is vested in the President by law, or (2) any function which such officer is required or authorized by law to perform only with or subject to the approval, ratification, or other action of the President: Provided, That nothing contained herein shall relieve the President of his responsibility in office for the acts of any such head or other official designated by him to perform such functions. Such designation and authorization shall be in writing, shall be published in the Federal Register, shall be subject to such terms, conditions, and limitations as the President may deem advisable, and shall be revocable at any time by the President in whole or in part."

  • Answer the question: Can he or can't he?! – Trish Aug 25 at 17:03
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    This suggests that any tweet constituting an executive order would have to be published in the Federal Register, but the tweet itself could be the underlying designation and authorization in writing, and there is a fair amount of statutory and case law supporting the notion that an authenticated writing is a signed writing. In the case of a tweet, the harder question would be whether it was truly intended seriously to be an order or if that was hyperbole or another rhetorical device. The subsequent federal register publication requirement could clarify this point. – ohwilleke Aug 26 at 21:54
  • 3 USC 301 refers to orders grinting an official delegated power -- those must be published in the FR. If ther is a requjirement for more general Executive orders and other Presidential actions to be publishe in the FR, it is in a different place, and yu haven't cited it. – David Siegel Aug 28 at 2:41

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