Executive Orders: Can Governors Make Laws?

Governors can issue executive orders, which are directives that manage operations within a state. While executive orders are a powerful tool for governors to advance and pursue new and revised policies, they are not the same as laws. Executive orders are rooted in the state constitution and vary in meaning and authority from state to state. Governors can use executive orders to demand budget cuts, coordinate rule promulgations, and address public health issues. However, executive orders cannot create obligations, responsibilities, conditions, or processes that have the force of law without statutory authority.

Governors' authority to issue executive orders

The authority of a governor to issue executive orders is derived from state constitutions, legislation, and case law, or is implied by the powers assigned to state chief executives. The scope of gubernatorial power varies from state to state, and governors may use executive orders to advance and pursue new and revised policies and programs. Executive orders are a powerful tool for governors to manage state operations, including state employment and facilities, and to address public health concerns.

In the United States, an executive order is a directive issued by the president to manage the operations of the federal government. These orders are numbered consecutively and are published in the Federal Register, the official journal of the federal government. Executive orders are subject to judicial review and may be overturned if they lack support from statutes or the Constitution. While the United States Constitution does not explicitly permit the use of executive orders, it grants "executive power" to the President and outlines their duties, including executing laws faithfully.

At the state level, the authority for governors to issue executive orders, or gubernatorial executive orders (GEOs), can vary. Some states, like Alabama, specify that the governor cannot issue executive orders without a clear grant of power from the legislature or the Constitution. Other states, like Washington, require specific statutory authority for executive orders to have the force and effect of law. In contrast, 26 states have explicit GEO authority in their constitutions, and 37 states authorize GEOs through legislation, according to a survey by the Council of State Governments.

Governors use executive orders to address a range of issues, such as budget cuts, water use during droughts, and public health initiatives. For example, Governor Pat Quinn of Illinois used a GEO to transfer the Diabetes Prevention and Control Program to the Department of Public Health, citing his authority under the state constitution and statutory law. Governors also have the power to issue executive orders related to state employment and facilities, such as prohibiting smoking in state buildings and vehicles to protect employees and visitors from secondhand smoke exposure.

In summary, while the governor's authority to issue executive orders may vary depending on the state and its constitution, legislation, and case law, it serves as a valuable tool for governors to manage state operations and advance their policy agendas.

Governors' roles and responsibilities

Governors have a wide range of roles and responsibilities, which vary from state to state. They are the state managers and leaders, responsible for implementing state laws and overseeing the operation of the state executive branch. They advance and pursue new and revised policies and programs using tools such as executive orders, executive budgets, and legislative proposals and vetoes.

As the chief executive, a governor is responsible for ensuring their state is prepared for emergencies and disasters. They also serve as the liaison to the federal government on behalf of their state. Governors carry out their duties with the support of department and agency heads, many of whom they are empowered to appoint.

In terms of lawmaking, governors do not have the authority to create laws by executive order. Executive orders are directives that manage the operations of the government and are used to ensure the execution of laws passed by the state legislature. While the governor signs off on every legislative bill passed by the state legislative body, the laws they sign are created by the state legislature.

The governor's use of executive orders is derived from the state constitution and case law, or is implied by the powers assigned to the state chief executive. The scope of gubernatorial power varies from state to state, and each state has its own process for coordinating and overseeing rule promulgation to ensure it reflects the governor's priorities.

In summary, while governors play a crucial role in implementing and executing laws, the power to create laws by executive order lies with the state legislature, not the governor.

Executive orders and the law

Executive orders are a common tool used by the US government to manage operations. They are issued by the President of the United States and carry the force of law. While the US Constitution does not explicitly permit the use of executive orders, it does vest executive power in the President. The President's authority to issue executive orders is further supported by Article Two, which grants them broad executive and enforcement authority.

At the state level, governors also have the power to issue executive orders, which are significant sources of law in every state. The authority for governors to issue executive orders is derived from state constitutions, case law, or the powers assigned to state chief executives. Governors can use executive orders to advance and pursue new and revised policies and programs. For example, a governor may use an executive order to demand budget cuts from state governments or to address issues such as water usage during droughts.

It is important to note that the meaning of "executive order" and the basis for a governor's authority to issue them can vary by state. While some states explicitly grant governors the power to issue executive orders, others may imply the authority through the governor's general responsibility to execute state laws. In some cases, governors may also have the power to create judicial nomination commissions through executive orders, as long as it does not conflict with valid legislative power.

Executive orders remain in force until they are cancelled, revoked, adjudicated unlawful, or expire. They can be reviewed and modified by a new president upon taking office.

Examples of executive orders

The authority for governors to issue executive orders is derived from state constitutions, case law, or the powers assigned to state chief executives. While the scope of gubernatorial power varies across states, executive orders are commonly used to address emergencies, implement policies, and manage state operations.

Executive orders can be employed to address various issues, including budgetary matters and environmental concerns. For instance, in 2007, Sonny Perdue, the governor of Georgia, issued an executive order directing state agencies and counties' water systems to reduce water usage during a severe drought. This demonstrates the ability of governors to utilize executive orders to address pressing state-level challenges.

In another example, Governor Newsom of California issued an executive order to support childcare providers impacted by the Los Angeles wildfires. This order aimed to ensure that those affected by the natural disaster could access the necessary assistance and resources to continue their important work.

Executive orders can also be used to implement large-scale policy changes. For instance, President Franklin Roosevelt issued Executive Order 6102, which forbade the hoarding of gold coin, gold bullion, and gold certificates within the continental United States. This order had significant economic implications and demonstrated the power of executive orders to shape financial policies.

Furthermore, executive orders can be used to address emergency situations and protect public safety. For example, Governor Ray of Washington issued an executive order establishing a "red zone" around Mt. St. Helens, delegating police power to the governor during times of emergency. This order ensured that the state had the necessary authority to manage the crisis effectively.

In summary, these examples illustrate how governors and state executives can utilize executive orders to address a range of issues, from budgetary constraints and environmental concerns to implementing large-scale policies and responding to emergencies. Executive orders provide governors with a powerful tool to make decisions and enforce policies within their states.

The process of issuing executive orders

• Proposal: In most cases, executive orders are proposed by federal or state agencies before being issued by the governor or president. Governors or presidents may also initiate the process by identifying a specific need or policy goal.
• Authorization: Before issuing an executive order, the governor or president must have the necessary authority. This authority is typically derived from the state or US Constitution, case law, or the powers assigned to the executive. In some states, the governor may require explicit authorization from the legislature.
• Preparation: The governor or president works with their staff, legal teams, and advisors to carefully craft the executive order. This involves determining the specific actions required, setting deadlines, and ensuring the order complies with the law and does not exceed the scope of executive power.
• Issuance: Once the executive order is finalized, it is signed by the governor or president. This signature signifies the official issuance of the order and sets it into motion.
• Implementation: The executive order is then communicated to the relevant agencies, departments, or entities responsible for carrying out its directives. They are required to take the specified actions within the designated timeframe.
• Review and Oversight: After issuance, executive orders are subject to review and oversight mechanisms. These include judicial review, legislative oversight, and public scrutiny. Executive orders may be challenged in court if they are found to violate the Constitution or federal statutes. Legislative bodies can also pass new laws to override executive orders, subject to veto power.
• Modification or Revocation: Executive orders can be modified, amended, or revoked by the issuing governor or president or by a succeeding one. This allows for flexibility and responsiveness to changing circumstances or priorities.
• Expiration: Executive orders may also have built-in expiration dates, after which they are no longer in force unless renewed or extended.

It is important to note that the process may vary across different states and the federal level, as the scope of gubernatorial and presidential powers can differ. Additionally, the specific procedures and requirements for issuing executive orders can be influenced by the unique political, legal, and institutional contexts of each jurisdiction.

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