Executive Orders Vs State Laws: Who Wins?

In the United States, an executive order is a directive by the president that manages operations of the federal government. Executive orders are numbered consecutively and are published in the Federal Register, the official journal of the federal government. They are also catalogued by the National Archives as official documents. Executive orders are subject to judicial review and may be overturned if they are not supported by the Constitution or a statute. While the US Constitution does not explicitly permit the use of executive orders, it does state that The executive Power shall be vested in a President of the United States of America. Governors, as state leaders, also have the authority to issue executive orders, which are derived from state constitutions, case law, or the powers assigned to state chief executives. So, can an executive order override a state law?

Executive orders are signed, written directives from the President that manage federal government operations

The format, substance, and documentation of executive orders have varied throughout US history. Today, they follow a strict documentation system. The White House issues the order first, then it is published in the Federal Register and recorded under Title 3 of the US Code of Federal Regulations. Executive orders are subject to judicial review and may be overturned if they lack support by statute or the Constitution.

The US Constitution does not explicitly permit the use of executive orders. However, Article II, Section 1, Clause 1 of the Constitution states: "The executive Power shall be vested in a President of the United States of America." Sections 2 and 3 describe the various powers and duties of the president, including "he shall take care that the Laws be faithfully executed." The US Supreme Court has held that all executive orders must be supported by the Constitution or enacted by Congress in statutes.

Executive orders can be controversial. For example, in 2014, the US House of Representatives approved a resolution authorizing Speaker of the House John Boehner to sue President Obama, claiming he exceeded his executive authority in changing a key provision of the Affordable Care Act ("Obamacare"). In another instance, President Harry Truman's Executive Order 10340 placed all the country's steel mills under federal control, but it was found invalid because it attempted to make law rather than clarify or further an existing law.

While the focus of this answer is on executive orders at the federal level, it is worth noting that governors at the state level also have the authority to issue executive orders, as outlined in state constitutions and case law.

They are rooted in Article II of the US Constitution or enacted by Congress

In the United States, an executive order is a directive by the president that manages operations of the federal government. The legal basis for executive orders is rooted in Article Two of the US Constitution, which gives presidents broad executive and enforcement authority to determine how to enforce the law and manage the resources and staff of the federal government's executive branch. This discretionary power must be supported by either an expressed or implied congressional law or the constitution itself.

Executive orders are subject to judicial review and may be overturned if they lack support by statute or the Constitution. The US Supreme Court has held that all executive orders must be supported by the Constitution, whether from a clause granting specific power or by Congress delegating authority to the executive branch. They must be rooted in Article II of the Constitution or enacted by Congress in statutes.

Executive orders are signed, written, and published directives from the President that are consecutively numbered. They are first issued by the White House, then published in the Federal Register, the official journal of the federal government. They are also recorded under Title 3 of the US Code of Federal Regulations, a codification of the permanent rules issued by the executive branch.

Executive orders can be controversial, and there have been several instances of states suing the federal government over the issuance of certain orders. For example, in 2014, the state of Washington (later joined by Minnesota) filed a suit challenging an executive order that restricted travel and stranded residents abroad, among other things. The states argued that the order harmed their universities by prohibiting international faculty, students, and scholars from travelling. The federal government argued that the executive order pertained strictly to immigration policies and did not directly concern the states.

In another instance, President Harry Truman's executive order placing all the country's steel mills under federal control was found invalid because it attempted to make law, rather than clarify or further an existing law put forth by Congress or the Constitution.

Executive orders can be overturned if they lack support by statute or the Constitution

In the United States, an executive order is a directive by the president that manages operations of the federal government. The order must be supported by the Constitution, whether from a clause granting specific power or by Congress delegating such power to the executive branch. Specifically, such orders must be rooted in Article II of the US Constitution or enacted by the Congress in statutes.

Executive orders are subject to judicial review and may be overturned if they lack support by statute or the Constitution. For example, President Harry Truman's Executive Order 10340 placed all the country's steel mills under federal control, but it was found invalid because it attempted to make law rather than clarify or further a law put forth by the Congress or the Constitution.

Similarly, attempts to block executive orders have been successful at times when such orders exceeded the authority of the president or could be better handled through legislation. For instance, in 2014, the US House of Representatives approved a resolution authorizing Speaker of the House John Boehner to sue President Obama over claims that he exceeded his executive authority in changing a key provision of the Affordable Care Act ("Obamacare"). Part of President Donald Trump's executive order, "Protecting the Nation from Foreign Terrorist Entry into the United States," which temporarily banned entry to the US for citizens of seven Muslim-majority countries, was stayed by a federal court in 2017.

In addition to the president, governors of states also have the authority to issue executive orders, which are found in state constitutions and case law or are implied by the powers assigned to state chief executives. Governors use executive orders to advance and pursue new and revised policies and programs.

The President's authority to issue executive orders is not explicitly stated in the US Constitution

The legal or constitutional basis for executive orders has multiple sources. Article Two of the Constitution gives the president broad executive and enforcement authority to use their discretion to determine how to enforce the law or to otherwise manage the resources and staff of the federal government's executive branch. The delegation of discretionary power to make such orders must be supported by either an expressed or implied congressional law, or the constitution itself.

Executive orders are signed, written, and published directives from the President that manage the operations of the federal government. They are numbered consecutively and are published in the Federal Register, the official journal of the federal government. Executive orders are also recorded under Title 3 of the US Code of Federal Regulations, which is a formal collection of rules and regulations issued by the executive branch and other federal agencies.

Executive orders are subject to judicial review and may be overturned if they lack support by statute or the Constitution. The US Supreme Court has held that all executive orders from the president must be supported by the Constitution, whether from a clause granting specific power, or by Congress delegating such power to the executive branch. Specifically, such orders must be rooted in Article II of the Constitution or enacted by Congress in statutes. Attempts to block such orders have been successful at times, when such orders either exceeded the authority of the president or could be better handled through legislation.

For example, in 1952, President Harry Truman's Executive Order 10340, which placed all the country's steel mills under federal control, was found invalid because it attempted to make law, rather than to clarify or further a law put forth by the Congress or the Constitution. In another instance, in 2014, the US House of Representatives approved a resolution authorizing Speaker of the House John Boehner to sue President Obama over claims that he exceeded his executive authority in changing a key provision of the Affordable Care Act ("Obamacare").

Governors also have the authority to issue executive orders, which are outlined in state constitutions

In the United States, a state executive order is a directive issued by a governor that regulates operations of the state government and certain aspects of citizen life. Governors also have the authority to issue executive orders, which are outlined in state constitutions. The authority for governors to issue executive orders is found in state constitutions, case law, or is implied by the powers assigned to state chief executives.

While the scope of gubernatorial power varies from state to state, governors generally possess broad executive authority to act within their states. They are responsible for ensuring that the laws are faithfully executed by the people and organisations that make up the executive branch. Governors carry out their duties with the support of department and agency heads, many of whom they are empowered to appoint.

State executive orders are usually enacted less frequently than bills passed by state legislatures. They are particularly used in the midst of a public health emergency or disaster. During a state of emergency, which can only be declared through executive order, the governor's powers may be expanded beyond their normal reach. For example, in response to the COVID-19 pandemic, almost all US state governors issued orders mandating or advising that people stay at home.

State executive orders are based on existing constitutional or statutory powers of the governor and do not require any action by the state legislature to take effect. For instance, executive orders may demand budget cuts from the state government when the state legislature is not in session and economic conditions have taken a downturn. In 2007, Sonny Perdue, the governor of Georgia, issued an executive order for all state agencies to reduce water use during a major drought.

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