Executive Orders: Overriding Legislation Or Not?

Executive orders are signed, written, and published directives from the President of the United States that manage the operations of the federal government. They are powerful tools of the presidency, often seen as instant law, and are generally enforceable by courts against private citizens. While executive orders do not require approval from Congress, they can be overruled by Congress and challenged in court. This raises the question: can executive orders nullify laws?

Executive orders are not legislation

Executive orders are directives issued by the President of the United States to manage the operations of the federal government. They are based on the President's broad executive and enforcement authority, as outlined in Article Two of the US Constitution, which allows the President to determine how to enforce the law and manage the resources and staff of the federal government's executive branch. While executive orders can have a significant influence on policy choices and how legislation is enforced, they are not the same as laws or legislation.

The US Constitution clearly delineates the roles of the different branches of government: Congress makes the laws, the President enforces them, and the judiciary reviews whether actions taken by Congress or the executive are lawful and constitutional. While Congress has the power to pass laws, executive orders are not laws in themselves. Instead, they are tools used by the President to direct their administration and signal priorities. Executive orders derive their authority from existing statutes or constitutionally enumerated presidential powers.

For example, an executive order that attempts to create an obligation, right, or penalty outside the scope of existing laws or presidential powers would be considered a legislative act. This would violate the Separation of Powers doctrine by encroaching on Congress's constitutional authority to make laws. Such an order would be deemed unlawful and unconstitutional, as it exceeds the President's authority. Executive orders are subject to judicial review, and they may be overturned if found to lack support by statute or the Constitution.

Executive orders can be challenged in court, and parties who stand to be injured by an order can sue the President and any agencies or officials tasked with executing it. These challenges can seek to declare the order unconstitutional or unlawful and prevent its enforcement. Additionally, individual agencies can be enjoined from enforcing regulations or policies stemming from an invalid executive order, although other agencies may still apply their regulations based on the same underlying order without additional litigation.

In summary, while executive orders are powerful tools that can shape policy and the enforcement of legislation, they are not legislation themselves. They are meant to ensure the faithful execution of laws passed by Congress and are bound by the limits of existing statutes and presidential powers.

The Supreme Court can reject nullification

The Supreme Court has the power to reject nullification. The theory of nullification is based on the view that the states formed the Union by an agreement among themselves and that they, as creators of the federal government, have the final authority to determine the limits of its power. However, the Supreme Court has consistently rejected this theory, holding that the Constitution was established directly by the people and that the federal government is superior to the states. The Court has interpreted the Supremacy Clause of the Constitution as giving federal laws supremacy over state laws, and Article III grants the federal judiciary the final power to interpret the Constitution.

The Supreme Court has a long history of rejecting nullification attempts by states. In the 19th century, the Court rejected several states' attempts to nullify various federal laws, including Wisconsin's attempt to nullify the Fugitive Slave Act in Ableman v. Booth. The Court also rejected Georgia's attempt to nullify federal treaties with the Cherokees, asserting its final authority to interpret the Constitution and federal treaties. In Martin v. Hunter's Lessee, the Supreme Court rejected the Virginia Court of Appeals' decision that the Supreme Court did not have authority over state courts, establishing that state courts could not nullify federal law.

In the 20th century, the Supreme Court continued to reject nullification. In Cooper v. Aaron, the Court explicitly held that states may not nullify federal law, preventing Arkansas from passing laws to prevent the integration of its schools. The Court has also implied that while states may pass laws denying assistance to federal officials in enforcing certain laws, they cannot completely nullify federal laws.

While the Supreme Court has the power to reject nullification, it is important to note that the President of the United States can issue executive orders, which are subject to Supreme Court review. The Supreme Court can decide whether or not to hear a case regarding an executive order, and it has previously overturned executive orders, such as in 1935 when it overturned five of Franklin D. Roosevelt's orders.

States cannot nullify federal laws

The concept of nullification is based on the idea that individual states can invalidate federal laws or judicial decisions that they deem unconstitutional. This theory has been controversial since its inception in early American history, with several notable instances of states attempting to nullify federal laws. However, it is important to emphasize that "states cannot nullify federal laws." This assertion is supported by the following detailed examples and explanations.

Firstly, the federal courts have consistently rejected the compact theory, which was proposed by Thomas Jefferson in his Kentucky Resolutions of 1798. Jefferson argued that the Constitution was a "compact" among the states, delegating a set of limited powers to the federal government. According to Jefferson, if the federal government exceeded these powers, each state had the authority to "nullify of their own authority" any violation of the Constitution. However, this interpretation has been rejected, with courts affirming that the Constitution was established directly by the people, as stated in its preamble: "We the people of the United States..."

Secondly, the Supremacy Clause of Article VI of the Constitution establishes the supremacy of federal laws over state laws. Specifically, it states that the Constitution and federal laws made in pursuance thereof are "the supreme law of the land ... anything in the constitution or laws of any state to the contrary notwithstanding." This clause clearly indicates that federal laws cannot be negated or nullified by state laws and are controlling as long as they are consistent with the Constitution.

Thirdly, the Supreme Court, which has final jurisdiction over constitutional issues, has explicitly rejected nullification attempts by states. In the case of Cooper v. Aaron (1958), the Supreme Court held that state governments had no power to nullify its decisions or their implementation. Similarly, in the case of Georgia's attempt to regulate Cherokee land, the Supreme Court asserted its authority to interpret the Constitution and federal treaties, rejecting Georgia's nullification effort. The Court has also rejected nullification attempts by states such as Pennsylvania, which challenged the Fugitive Slave Act, and South Carolina, which attempted to nullify federal tariff laws.

In conclusion, while the theory of nullification suggests that states possess the unilateral power to determine the constitutionality of federal laws, the weight of legal authority confirms that "states cannot nullify federal laws." This principle is upheld by the Supremacy Clause of the Constitution and reinforced by the decisions of the federal courts and the Supreme Court, which have consistently affirmed the supremacy of federal laws and rejected state attempts to nullify them.

Executive orders can be overturned

The US Supreme Court has the authority to review the validity of executive orders, and in doing so, it helps define the scope of presidential powers. This was first implied in the Court's decision in Marbury v. Madison (1803) and later confirmed in subsequent cases. The Supreme Court can also determine whether the President has exercised legislative power that belongs only to Congress. For example, in 1935, the Supreme Court overturned five of Franklin D. Roosevelt's executive orders.

Executive orders can also be challenged in lower federal courts. States can file suit in federal district court, arguing that an executive order is unconstitutional and illegal. For example, Washington and Minnesota challenged an executive order on immigration policies, arguing that it stranded residents abroad, split families, restricted travel, and damaged the states' economies and universities.

Additionally, a President can revoke their own executive orders or those issued by a previous administration. For instance, President Donald Trump rescinded numerous executive actions issued by President Biden, stating that he could "undo almost everything Biden did... through executive order."

Executive orders are enforceable by courts against private citizens and can be overruled by Congress

Executive orders are based on the US Constitution's Article II, which vests executive powers in the President. They are directives issued by the President to manage operations of the federal government and are enforceable by law. While the President has broad discretionary powers to issue executive orders, these are subject to judicial review and may be overturned if found to be unconstitutional or lacking support by statute.

Executive orders can have the same effect as federal laws and are enforceable against private citizens. For instance, in Hirabayashi v. United States (1943), the Court upheld a curfew order directed at Japanese Americans, and in Korematsu v. United States (1944), the Court approved an order excluding Japanese Americans from certain areas on the West Coast, resulting in the displacement of thousands of people. In both cases, the Court ruled that the orders were legitimate military measures taken to protect national security.

However, executive orders can be challenged in court by private citizens if they are found to be unlawful or unconstitutional. For example, in Farmer v. Philadelphia Electric Co. (1964), the plaintiff alleged a violation of an executive order prohibiting racial discrimination by government contractors. The U.S. Court of Appeals for the Third Circuit noted that the Constitution was meant to impose limits on governmental power, and the case was dismissed because it did not assert any claim against anyone acting under governmental authority.

Executive orders can also be overruled by Congress, which can pass a new law to override an executive order, subject to a presidential veto. Additionally, Congress can also choose not to provide the necessary funding to implement an executive order, effectively blocking its implementation. For example, President Harry Truman's Executive Order 10340, which placed all the country's steel mills under federal control during the Korean War, was invalidated by the Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer (1952) because it attempted to make law rather than clarify or further a law put forth by Congress or the Constitution.

In conclusion, while executive orders are enforceable by courts against private citizens, they must be rooted in the Constitution or enacted by Congress in statutes. They can be challenged in court and overruled by Congress if found to be unlawful or unconstitutional.

Frequently asked questions