Executive Orders: Above The Law?

Executive orders are directives issued by the President of the United States to manage the operations of the federal government. They are not legislation and do not require approval from Congress. However, they must be rooted in the President's powers as outlined in the Constitution or in a law passed by Congress. While executive orders can be an effective way to carry out policy, they can also be misused if the President orders the government to take actions that violate the Constitution or federal laws. In such cases, the courts must step in to protect the rule of law. This raises the question: can an executive order not be based on law?

Executive orders are not legislation

Executive orders are directives issued by the President of the United States that govern the operations of the federal government. They are not the same as legislation, as they do not require approval from Congress.

Article II of the US Constitution vests the President with executive power over the government, including the obligation to "take care that the laws be faithfully executed". The Constitution gives Congress control over matters such as taxation, spending, and certain war powers. Most laws, including what counts as a criminal offence, income tax rates, and declaring war, come from Congress.

Executive orders cannot be used to create new statutes, but they can direct federal agencies on how to implement a statute. For example, an executive order can be used to tell the Department of Justice whether prosecuting certain drug cases is a priority or not. They can also be used to appoint personnel, such as when Lincoln appointed Charles A. Peabody as a judge.

Executive orders are subject to judicial review and may be overturned if they are not supported by statute or the Constitution. Federal courts can be called on to review an order's lawfulness and determine whether it is a valid exercise of the President's power. If an executive order contradicts or violates the Constitution, federal laws, or Americans' fundamental rights, courts can strike it down. For example, a federal appeals court determined that the Trump administration did not have the authority to issue an executive order withholding federal funding from "sanctuary cities".

While executive orders are not legislation, they are published in the Federal Register, the daily journal of the federal government, and are catalogued by the National Archives as official documents.

The US Constitution does not explicitly permit executive orders

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 from the president must be supported by the Constitution or enacted by Congress in statutes.

Executive orders are written, signed, and published directives from the President of the United States that manage operations of the federal government. They are one of the most common "presidential" documents and have the force of law, much like federal laws and regulations issued by federal agencies. Every American president has issued at least one, totalling more than 13,700 since George Washington took office in 1789.

Executive orders cannot override federal laws and statutes. They cannot be used to sidestep the checks and balances in the Constitution, nor can they be used to take over powers from other branches, such as the power vested in Congress to pass new statutes. Executive orders are subject to judicial review and may be overturned if they lack support by statute or the Constitution.

While the US Constitution does not explicitly permit executive orders, it does grant the president broad powers in areas such as control and operation of the federal government, federal agencies, and foreign affairs. The president's ability to issue executive orders is derived from their broad authority to issue directives and manage the resources and staff of the federal government's executive branch.

Executive orders must be rooted in the Constitution or a law passed by Congress

Executive orders are directives issued by the President of the United States to manage the operations of the federal government. They are written, signed, and published documents that order the government to take specific actions to ensure the laws be "faithfully executed". While they do not require approval from Congress, executive orders must be rooted in the Constitution or a law passed by Congress to be permissible and have legal effect.

Article II of the Constitution vests the president with executive power over the government, including the duty to "take care that the laws be faithfully executed". The Constitution gives Congress control over matters like taxation, spending, and certain war powers. Most laws, such as what constitutes a criminal offence, taxation, and declaring war, come from Congress. Executive orders cannot create new statutes, but they can instruct federal agencies on how to implement a statute. For instance, an executive order can direct the Department of Justice to prioritise or deprioritise prosecuting certain drug cases.

The authority of executive orders is not absolute and can be challenged in court. Federal courts can review an order's lawfulness and determine whether it is a valid exercise of the president's power. The President cannot issue an order that contradicts or violates the Constitution, federal laws, or Americans' fundamental rights. If the President exceeds their lawful authority or violates the Constitution, the courts will be called on to provide justice. For example, during Trump's first term, a federal appeals court determined that the administration did not have the authority to issue an executive order withholding federal funding from "sanctuary cities", upholding Congress's constitutional power over federal grants.

Executive orders have been used by presidents to carry out policy while staying within the rule of law. However, they can also be misused to undermine important civil liberties or civil rights. For instance, President Trump's order rescinding Johnson's order on civil rights obligations of federal contractors undermined civil rights protections and signalled that equal protection was not a priority.

Executive orders can be stopped by Congress

Executive orders are directives issued by the President of the United States to manage operations of the federal government. They are generally accepted as part of the President's power as the country's executive. However, executive orders cannot override federal laws and statutes. They are subject to judicial review and may be overturned if they lack support by statute or the Constitution.

Executive orders are not legislation and do not require approval from Congress. However, Congress can stop an executive order by passing legislation that invalidates it or by refusing to provide the necessary funding to carry out the policy measures contained in the order. Congress can also enact a law that reverses what the President has done, provided it has the constitutional authority to legislate on the matter.

For example, in 2014, the US House of Representatives approved a resolution authorizing Speaker of the House John Boehner to sue President Obama, claiming that he exceeded his executive authority in changing a provision of the Affordable Care Act ("Obamacare"). In another instance, a federal appeals court determined that the Trump administration did not have the authority to issue an executive order withholding federal funding from "sanctuary cities", upholding Congress's constitutional power.

It is important to note that the President cannot use an executive order to sidestep checks and balances or take over powers from other branches, such as the power vested in Congress to pass new statutes. While executive orders may take effect immediately upon the President's signature, many require additional steps by government agencies, which can take months or even years.

Executive orders can be overturned by the courts

Executive orders are directives issued by the President of the United States to manage the operations of the federal government. They are signed, written, and published documents that carry the force of law. While executive orders do not require approval from Congress, they must be supported by the Constitution and may be overturned by the courts if found to be unlawful.

The US Constitution's Article II, Section 1, Clause 1 states that "The executive Power shall be vested in a President of the United States of America." Sections 2 and 3 outline the President's powers and duties, including the obligation to "take care that the Laws be faithfully executed." This grants the President broad authority to use their discretion in enforcing laws and managing the executive branch.

However, this power is not absolute, and executive orders can be challenged and overturned by the courts if found to lack legal or constitutional basis. The Marbury v. Madison case in 1803 established the authority of federal courts to review executive actions, and this has been reaffirmed in subsequent cases. Courts can strike down executive orders if they are deemed to exceed the President's authority or if they are found to be unconstitutional in substance.

For example, President Harry Truman's Executive Order 10340, which placed all the country's steel mills under federal control, was found invalid by the Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer (1952) because it attempted to make law rather than clarify or further an existing law. Similarly, President George W. Bush's Executive Order 13233, which restricted public access to the papers of former presidents, was criticised as violating existing law and was later revoked by President Barack Obama.

In summary, while executive orders carry legal weight, they are subject to judicial review and can be overturned by the courts if found to lack a constitutional or statutory basis. This serves as a check and balance on the President's power and ensures that executive orders do not exceed their lawful scope.

Frequently asked questions