Staff Reporter (2020 – 2021)
Executive orders are powerful and often misunderstood. Executive orders are often seen as a “new tool” for presidents to enact policy decisions without congressional approval.1 In reality, an executive order is an “old tool” used by presidents since our nation’s birth. For example, in 1793, President Washington issued a proclamation of neutrality via executive order that declared the U.S. a neutral party in the French Revolutionary Wars.2 In this article, you will find the answers to the most frequently asked questions about executive orders.
What exactly is an “executive order?”
“An executive order is a signed, written, and published directive from the President of the United States that manages operations of the federal government.”3 Once a president issues an executive order, the order is sent to the federal government’s official journal, the Federal Register, for publishing.4 In other words, an executive order is a published tool that a president can use to enact change she deems necessary without approval from the judicial and legislative branches. Generally, presidents issue executive orders in response to a national crisis, and as part of the executive branch, State governors also have the power to issue executive orders.5 Executive orders are meant to be a directive for federal and state agencies on how to respond to a national crisis.6 While an executive order might affect private citizens, it does not apply directly to private citizens.7
Where do presidents obtain their power to issue executive orders?
The U.S. Constitution gives the president authority to issue executive orders.8 While the Constitution does not explicitly state a president’s power to issue executive orders, legal scholars argue that the wording in Article II of the Constitution inherently implies the presidential power to issue executive orders.9 Specifically, Article II of the Constitution states that as head of the executive branch, a president must ensure “that the laws be faithfully executed…”10 However, it is important to note that a president cannot expand her powers through executive orders. For example, since an executive order is an executive branch power, an executive order that encroaches on the power of the legislative or judicial branch can be legally challenged as unconstitutional.
How do executive orders differ from laws?
An executive order is not a law. As referenced in the Schoolhouse Rock song, “I’m Just a Bill,” the House of Representatives, Senate, and President must review and approve a bill before it becomes a law.11 An executive order, however, only needs review and approval by the President. As such, the fundamental differences between executive orders and laws affect how each behaves in the real world. For example, even though laws are repealable, laws tend to be more permanent in nature than executive orders. Unlike executive orders, at least two branches of government rigorously write and review laws before their enaction.12 Therefore, the process of repealing a law requires an equally rigorous review and approval before it can be repealed. Inversely, since presidents are the only ones who can enact executive orders, a subsequent president can quickly overturn her predecessor’s executive orders.13 For example, during his presidency, ex-President Trump signed an executive order imposing stricter requirements for immigrants seeking asylum.14 When President Biden assumed the presidency, he immediately overturned ex-President Trump’s stricter asylum requirements.15 In layman’s terms, “easy come, easy go.”
Can other branches of government overturn an executive order?
The short answer is yes. The Separation of Powers Doctrine in the Constitution prevents any single branch of government from abusing its power.16 Under the Separation of Powers Doctrine, a branch of government violates the Constitution if the branch exceeds the scope of its power.17 A government branch exceeds the scope of its power by assuming powers reserved for the other governmental branches. For example, Congress could indirectly challenge an executive order if the order assumed powers typically reserved for Congress.18 Indirect challenges can come in the form of congressional legislation limiting the executive order’s power or the removal of funds necessary for the executive order’s success.19
Executive orders are here to stay.
To date, all U.S. presidents cumulatively have issued more than 13,000 executive orders.20 Executive orders allow a president to enact her policies quickly without waiting for congressional approval. While executive orders differ greatly from laws, executive orders are a valuable tool for presidents in times of national crises. For example, since taking office in January, President Biden has issued over 30 crucial executive orders related to COVID-19, immigration, and the economy.22 Consequently, executive orders are powerful but hopefully now, a bit less misunderstood.
1 Cass R. Sunstein, There’s Nothing Nefarious About Executive Orders, Bloomberg (Nov. 16, 2020, 7:00 AM), https://www.bloomberg.com/opinion/articles/2020-11-16/executive-orders-b.....
2 George Washington, Neutrality Proclamation (Apr. 22, 1793), https://founders.archives.gov/documents/Washin gton/05-12-02-0371.
3 What Is an Executive Order?, American Bar Association: Division for Public Education (Jan. 25, 2021), https://www.americanbar.org/groups/public_education/publications/teachin.....
4 Fed. Reg., Executive Orders, https://www.federalregister.gov/presidential-documents/executive-orders#... er%20the%20President%20signs%20an,Federal%20 Register%20shortly%20after%20receipt.
5 What Is an Executive Order?, American Bar Association: Division for Public Education (Jan. 25, 2021), https://www.americanbar.org/groups/public_education/publications/teachin....
6 Jackie McDermott, What is the President’s Authority During a Pandemic? (May 13, 2020), https://constitutioncent er.org/blog/what-is-the-presidents-authority-during-a-pandemic
7 What Is an Executive Order?, American Bar Association: Division for Public Education (Jan. 25, 2021), https://www.americanbar.org/groups/public_education/publications/teachin....
8 U.S. Const. art. II, § 3.
11 Schoolhouse Rock, I’m Just a Bill (1997).
13 The Heritage Foundation, Executive Orders, https://www.heritage.org/political-process/heritage-explains/execut ive-orders (last visited Feb. 13, 2021).
14 Aliens and Nationality, 8 C.F.R. § 1208 (2019).
15 Exec. Order No. 13993, 86 Fed. Ref. 14 (Jan. 20, 2021).
16 U.S. Const. art. I, § 1; U.S. Const. art. II, § 1; U.S. Const. art. III, § 1.
19 What Is an Executive Order?, American Bar Association: Division for Public Education (Jan. 25, 2021), https://www.americanbar.org/groups/public_education/publications/teachin....
21 Fed. Reg., 2021 Joe Biden Executive Orders (last updated Mar. 31, 2021), https://www.federalregister.gov/presid ential-documents/executive-orders/joe-biden/2021.