Keith Mack
A new president has the power to direct the agenda of executive branch departments and agencies by ordering the heads of those agencies to rescind guidelines, policy statements, and other regulatory guidance from the previous administration. While a new president can repeal or modify executive orders, they cannot change the Constitution by executive order. A new administration may also have to contend with stare decisis, or the legal principle of adhering to precedent, when attempting to repeal old laws.
| Characteristics | Values |
|---|---|
| Can a new president repeal old laws? | Yes, a new president can repeal old laws, but only if they are executive orders or sub-regulatory guidance. |
| Can a new president repeal old laws without intervention? | No, a new president cannot repeal old laws without congressional intervention if a court has already ruled that the previous administration's regulation was valid. |
| Can a new president repeal part of the Constitution? | No, a new president cannot repeal part of the Constitution by executive order. |
| Can a new president direct the agenda of executive branch departments and agencies? | Yes, a new president can direct the agenda of executive branch departments and agencies by ordering the heads of those agencies to rescind guidelines, policy statements, opinion letters, and other sub-regulatory guidance that implemented the prior administration's policies. |
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What You'll Learn
Presidents can repeal executive orders
A new president can direct the agenda of executive branch departments and agencies by ordering the heads of those agencies to rescind guidelines, policy statements, opinion letters, and other sub-regulatory guidance that implemented the prior administration's policies. There is generally no particular process required for an agency to rescind a previous executive order.
A new president can also issue executive orders to implement their own affirmative policy objectives. For example, President Obama issued an executive order during his first week in office to close the detention facilities at the Guantánamo Bay Naval Base.
Executive orders can be repealed or amended by arguing that a new approach reflects the best interpretation of the statute. The new administration may have to contend with the stare decisis impact of earlier court rulings, but this is not an impossible hurdle to clear.
Executive orders can also be repealed if they are deemed unlawful. The heads of all executive departments and agencies can be directed to identify certain categories of unlawful and potentially unlawful regulations and begin plans to repeal them.
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Presidents cannot change the Constitution
While a new president can direct the agenda of executive branch departments and agencies, ordering the heads of those agencies to rescind guidelines, policy statements, opinion letters, and other sub-regulatory guidance that implemented the prior administration's policies, they cannot change the Constitution.
The Constitution of the United States is a rigid document, and amending it is a complex process. The Constitution provides that an amendment may be proposed either by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of the State legislatures. The President does not have a constitutional role in the amendment process, and the joint resolution for an amendment does not go to the White House for signature or approval. The original document is forwarded directly to the National Archives and Records Administration (NARA) Office of the Federal Register (OFR) for processing and publication.
The President has no power to repeal or amend any part of the Constitution by executive order. The Constitution can only be amended by a two-thirds vote in both the House and the Senate, followed by ratification by three-quarters of the states. This process is purposefully challenging to ensure that enduring principles, such as birthright citizenship, are not easily revoked.
While the President may play an informal, ministerial role in transmitting Congress's proposed amendments to the states for potential ratification, they do not have any formal constitutional role in the amendment process. The Supreme Court has articulated the Judicial Branch's understanding that the President has no formal role, and the President cannot veto a proposed amendment.
Therefore, it is clear that the President cannot change the Constitution unilaterally and must follow the established amendment process, which requires the involvement of Congress and the states.
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Presidents can direct the agenda of executive branch departments
The power of the Executive Branch is vested in the President of the United States, who acts as head of state and Commander-in-Chief of the armed forces. The President is responsible for implementing and enforcing the laws written by Congress and, to that end, appoints the heads of the federal agencies, including the Cabinet. The Vice President is also part of the Executive Branch and is ready to assume the Presidency if the need arises.
The President can issue executive orders, which direct executive officers or clarify and help implement existing laws. The President also has the power to extend pardons and clemencies for federal crimes, except in cases of impeachment. The President is required to "from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient." While the President may fulfil this requirement in any way they choose, they traditionally give a State of the Union address to a joint session of Congress each January (except in inaugural years), outlining their agenda for the coming year.
A new president can direct the agenda of executive branch departments and agencies by ordering the heads of those agencies to rescind guidelines, policy statements, opinion letters, and other sub-regulatory guidance that implemented the prior administration's policies. The incoming administration may also issue new policy orders in the form of executive orders to implement affirmative policy objectives.
The President's power to direct the agenda of executive branch departments is limited by the fact that the Cabinet and independent federal agencies are responsible for the day-to-day enforcement and administration of federal laws. These departments and agencies have missions and responsibilities as diverse as those of the Department of Defense and the Environmental Protection Agency, the Social Security Administration, and the Securities and Exchange Commission.
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Presidents can issue new policy orders
A new president can issue executive orders (EOs) to implement their policy objectives. For instance, President Obama issued an executive order during his first week in office to close the detention facilities at the Guantánamo Bay Naval Base.
Executive orders can be used to direct the agenda of executive branch departments and agencies by ordering the heads of those agencies to rescind guidelines, policy statements, opinion letters, and other sub-regulatory guidance that implemented the prior administration's policies. For example, President Trump rescinded Johnson's order concerning the civil rights obligations of federal contractors.
However, executive orders cannot be used to write new statutes or override existing ones. They can only tell federal agencies how to implement a statute. For example, while Congress decides which drugs are legal or illegal, an executive order can tell the Department of Justice whether prosecuting certain drug cases is a priority.
Executive orders can be stopped by Congress or the courts if they are deemed unlawful or unconstitutional. Additionally, any future president can issue a new executive order that rescinds or amends a previous one.
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Presidents can't repeal laws without Congress
The US Constitution does not allow the president to repeal laws without Congress. The president can, however, issue and revoke executive orders. The president can also impose tariffs without congressional approval upon the declaration of an IEEPA national emergency. In such cases, the president must regularly consult Congress and submit reports explaining the necessity of the declaration. Congress can, however, terminate the national emergency by passing a joint resolution.
Congress can write legislation that reverses or modifies an agency's regulation. For instance, regulations issued in the last seven to eight months of an outgoing president's term can be disapproved by a new president with a simple majority in both houses of Congress. This can be done through expedited procedures to send a joint resolution of disapproval.
The Congressional Review Act of 1996 (CRA) gives Congress 60 legislative days to vote to disapprove of a regulation. If a resolution of disapproval falls on the desk of a president who agrees with the disapproval, they can sign it and overturn the rule.
The Constitution gives Congress the power to set tariffs. Article I, Section 8 of the Constitution states that Congress has the power to "lay and collect Taxes, Duties, Imposts and Excises" and to regulate commerce with foreign countries. Congress has, however, delegated portions of its tariff authority to the president, subject to certain conditions and restrictions.
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Frequently asked questions
Yes, the new president can repeal old laws. The president can issue executive orders to implement affirmative policy objectives, which can include repealing old laws.
The new president can direct the agenda of executive branch departments and agencies by ordering the heads of those agencies to rescind guidelines, policy statements, and other sub-regulatory guidance from the previous administration.
No, the president cannot change the Constitution by executive order. Amending the Constitution requires a two-thirds vote in both the House and the Senate, as well as ratification by three-quarters of the states.
No, the new president must follow certain procedures and may face legal challenges when attempting to repeal laws. For example, the 1946 Administrative Procedure Act requires federal agencies to go through a "notice and comment" process when repealing major rules, giving the public a chance to weigh in.
