Executive Orders – An Overview

A problem we face is a lack of understanding of how executive orders work, what they can and cannot do, how they are enforced, and how they are challenged if they are believed to be either outside the constitutional authority of the Executive Branch or within the authority of the Executive Branch but harmful to or contradictory to Federal laws and statutes. George Washington issued his first executive order shortly after his inauguration, requesting information from departments of the government that existed under the Articles of Confederation be passed to corresponding departments created by Congress under the Constitution.

What is an executive order? An executive order is a written directive from the President of the United States managing operations of the Federal government that fall under the purview of the Executive Branch.?Article II of the Constitution gives the president certain power in the government, which includes, as stated in the oath of office, the obligation to see that laws are faithfully executed. While the Constitution does not specifically mention executive orders, Article II Section 2 gives the President wide berth when it comes to the operation of the federal government. The authority to issue executive orders comes from Article II, and from specific legislation passed by Congress that gives specific powers to the Executive Branch. Likewise, executive orders are kept in check, as is the Executive Branch, with specific legislation passed by Congress, by the process of judicial review, and by direct court challenges (i.e. lawsuits).

Executive orders tell departments that fall under the Executive Branch how to operate, what rules to enforce, or not enforce, and can also be used to shut down a particular department or create a new one. Executive orders can also rescind executive orders issued by previous administrations. It is important to note that executive orders are not laws, and they cannot supersede or override federal law. Only Congress can enact laws and statutes. Only Congress can repeal laws or statutes.

Executive orders must stay within the scope of the constitutional authority of the executive branch, and must not violate any federal law. The president cannot use executive orders to go around the Constitution’s checks and balances, the president cannot assume or remove powers of other branches. The president cannot take actions that are not authorized by the Constitution or are in violation of federal laws. Executive orders cannot be used to direct states to take specific action. Executive orders cannot be used to direct private entities to change policy or the way they operate, including individual United States citizens. Congress can override an executive order with specific legislation, and the courts can declare an executive order unconstitutional.

It is worth repeating, an executive order, while having legal stature, is not a law and cannot contradict federal law or statutes. It is also worth restating that not all executive orders are enforceable, because they may contradict federal law, or may be outside of the reach of the Executive Branch, or may have no legal basis.

Sources:

Anders, Christopher. “What Is an Executive Order and How Does It Work?: ACLU.” American Civil Liberties Union. https://www.aclu.org/news/privacy-technology/what-is-an-executive-order-and-how-does-it-work.

“Commission-Appointing Commissioners for Surveying the District of Territory for the Permanent Seat of the Government of the United States.” The American Presidency Project. https://www.presidency.ucsb.edu/documents/commission-appointing-commissioners-for-surveying-the-district-territory-for-the-permanent.

“Defining the President’s Constitutional Powers to Issue Executive Orders.” National Constitution Center – constitutioncenter.org. https://constitutioncenter.org/blog/defining-the-presidents-constitutional-powers-to-issue-executive-orders.

“Executive Orders 101: What Are They and How Do Presidents Use Them?” National Constitution Center – constitutioncenter.org. https://constitutioncenter.org/blog/executive-orders-101-what-are-they-and-how-do-presidents-use-them.

“Executive Orders, U.S. History, Presidential Powers, Governance, Historical Context, Political Impact, Executive Action, Policy Decisions.” Bill of Rights Institute. https://billofrightsinstitute.org/e-lessons/executive-orders-past-and-present.

Executive orders. https://www.americanbar.org/groups/public_education/resources/teacher_portal/educational_resources/executive_orders/.

“Executive Orders.” Executive Orders | The American Presidency Project, February 3, 2025. https://www.presidency.ucsb.edu/statistics/data/executive-orders.

Feuer, Ben. “The Surprisingly Contentious History of Executive Orders.” Complex Appellate Litigation Group, May 24, 2022. https://calg.com/the-surprisingly-contentious-history-of-executive-orders/.

“Founders Online: Executive Order, 15 March 1791.” National Archives and Records Administration. https://founders.archives.gov/documents/Washington/05-07-02-0322.

U.S. Constitution | Constitution Annotated | congress.gov | Library of Congress. https://constitution.congress.gov/constitution/.

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