Executive Orders: Can They Suspend Laws?

Executive orders are written policy directives issued by the president with the same power as federal law. They are not defined in the Constitution but are based on historical practice, executive interpretations, and court decisions. While an executive order can have the same effect as a federal law, Congress can pass a new law to override an executive order. The President's power to issue executive orders has been challenged in court, with some orders being temporarily blocked. Executive orders can be used to suspend the entry of aliens or any class of aliens, as seen in the example of suspending the entry of aliens from seven countries for 90 days. The President's authority to issue executive orders stems from Article II, Section 1 of the Constitution, which grants executive powers and requires the President to take Care that the Laws be faithfully executed. This topic explores the limits of executive orders and the checks and balances provided by the legislative and judicial branches.

Executive orders cannot change the constitution

Executive orders are directives issued by the President of the United States. They are typically used to instruct agencies and officials within the executive branch of the federal government to follow a certain course of action, or to allocate resources, as long as this does not contradict existing laws or the Constitution.

Executive orders cannot be used to change the Constitution. The Constitution is the supreme law of the United States, and any changes to it must go through a specific amendment process outlined in Article V of the Constitution. This process requires a two-thirds majority vote in both the House of Representatives and the Senate, as well as ratification by three-quarters of the states.

In 2018, President Trump stated that he intended to issue an executive order to repeal the citizenship guarantee in the 14th Amendment to the Constitution, which grants citizenship to anyone born in the United States. This proposal was met with widespread criticism, and legal experts were quick to point out that such an order would be unconstitutional. The American Civil Liberties Union (ACLU) and the ACLU of Louisiana reaffirmed that "the president cannot repeal part of the Constitution by executive order".

Executive orders can, however, be used to enforce constitutional principles. For example, in 2023, President Trump issued an executive order entitled "Ensuring Accountability for All Agencies", which asserted that all federal agencies are accountable to the American people, as required by the Constitution. This order also stated that all agencies must submit draft regulations for White House review and consult with the White House on their priorities and strategic plans.

Executive orders can be revoked

Executive orders are official documents that the President of the United States uses to manage the operations of the Federal Government. They are directives that cite the President's authority under the Constitution and statute. While executive orders have historically related to routine administrative matters and the internal operations of federal agencies, recent Presidents have used them more broadly to carry out policies and programs.

Congress also has the power to overturn an executive order by passing legislation that invalidates it. The President may veto such legislation, but Congress can override the veto with a two-thirds majority. Additionally, Congress can thwart an executive order by denying the necessary funding for its implementation.

Finally, the courts can stay enforcement or overturn an executive order found to be beyond the President's constitutional authority. If different circuits come to different conclusions on the validity of an executive order, the U.S. Supreme Court will likely grant a review to avoid confusion.

Executive orders can be temporarily blocked by federal court judges

For example, in 2025, U.S. District Judge John McConnell issued a TRO requiring the Trump administration to unfreeze federal grants and loans that the administration had previously cut off. Similarly, U.S. District Judge James Robart granted a nationwide TRO against President Trump's executive order banning travelers from seven majority-Muslim countries, arguing that it unconstitutionally stranded residents abroad, split families, restricted travel, and damaged the state's economy and universities.

Federal judges have a range of tools to enforce their orders, including civil and criminal contempt, fines, and arrests. However, judges are cautious about using these tools against the executive branch, as it raises profound constitutional questions about the separation of powers. Instead, judges may reiterate their order and identify specific benchmarks the party must meet to demonstrate compliance. Ultimately, federal judges rely on law enforcement and federal prosecutors to enforce penalties for non-compliance.

Executive orders can be challenged in court

Courts can strike down executive orders if the president lacked the authority to issue them or if they are found to be unconstitutional. In some cases, the manner in which executive branch officials have interpreted an order may be challenged rather than the order itself. The Supreme Court has, in the past, upheld executive orders issued by Presidents Jimmy Carter and Ronald Reagan during and after the Iranian hostage crisis of 1979-1981. The orders suspended federal court proceedings against Iranian assets, and the Supreme Court found that they were issued in accordance with the implied will of Congress.

Federal trial court appeals go to a US Circuit Court, and if different circuits come to different conclusions on the validity of an executive order, the US Supreme Court will likely grant a review to avoid confusion. The federal government has argued in some cases that states lack standing to challenge executive orders, particularly when national security concerns are involved. However, states have argued that they have the right to assert the constitutional rights of individuals affected by executive orders under the "third-party standing doctrine."

Legal advocacy groups have challenged the legal limits of executive orders, and federal judges have temporarily blocked certain plans, such as ending birthright citizenship. While the executive branch has traditionally complied with court orders, there have been concerns about the potential for the Trump administration to challenge judicial authority.

Executive orders can be overridden by Congress

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 not legislation and do not require approval from Congress. However, Congress can override a presidential veto by a two-thirds majority, and can effectively thwart an executive order by denying funding for any actions that require it. The courts can also stay enforcement or overturn an executive order that is deemed to be beyond the President's constitutional authority.

Executive orders are often introduced with a phrase such as "by the authority vested in me as President by the Constitution and the laws of the United States of America". They may quote other existing orders or laws, or offer the President's legal rationale for issuing the order.

While executive orders do not require approval from Congress, they are subject to certain limitations. Sections 3 and 4 of Article II of the Constitution provide potential limitations on executive action, stating that the President shall "take Care that the Laws be faithfully executed" and providing for impeachment and removal of the President in cases of treason, bribery, or other high crimes and misdemeanors.

In addition, the Supreme Court can review and potentially overturn executive orders. For example, during Franklin D. Roosevelt's presidency, the Supreme Court overturned five of his executive orders in 1935. In cases where different circuits reach different conclusions on the validity of an executive order, the Supreme Court is more likely to grant review to avoid confusion.

In summary, while executive orders do not require approval from Congress and cannot be simply overturned by Congress, there are mechanisms in place to check their power. These include congressional oversight of funding, judicial review, and potential limitations by the Supreme Court or the Constitution itself.

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