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Presidential Executive Orders

What are they?
Why does the President have this power?
How did they come about?

An executive order is one of several instruments or tools that allows the president to manage the executive branch.1  First used by Washington, presidents continued to issue them because they were assumed to be constitutional; it was not until 1896, however, that the Supreme Court ruled them to be so.2

The executive order is not an enumerated power, that is, it is not explicitly stated in the Constitution.  Instead, it is an inherent power that flows from one of the two main presidential roles that are described in Article II.  Over the nation’s history, Supreme Court decisions have identified and defined these roles; they are head of state and head of government.  Being the head of state empowers the president to represent the US on the world stage.  It flows from two enumerated powers in Article II, section 2: clause 1, the powers to send and receive ambassadors and to negotiate treaties, and clause 2, power as commander-in-chief.  The head of government role is commonly referred to as the chief executive.  It emanates from Article II, section 1, the vesting clause, and section 3, that the “laws be faithfully executed.”  In the instance of executive orders, the Supreme Court reasoned that the president, as the designated leader of executive branch, should possess the authority to issue directives to subordinates on how to implement the president’s policies as well as laws passed by Congress and federal court orders. 

Executive orders have the force of law but only apply to the executive branch, not to Congress or the federal courts; moreover, they cannot, be imposed on independent regulatory agencies created by Congress to be independent of both Congress and the Executive branch — for example the Federal Reserve Board and the Security and Exchange Commission.  Presidents do not need congressional approval to issue or enforce them, but may require congressional action to meet their objectives. 

Depending on the wishes of the president and the wording of the order, an executive order can remain in effect indefinitely or be time-limited, but it can be overturned and/or replaced by any subsequent president.  A recent example is Pres. Trump’s overturning Pres. Obama’s order joining the Paris Accords to reduce environmental pollution, which was subsequently overturned by Pres. Biden only to be overturned again by Pres. Trump.

There are several ways by which an executive order may be thwarted.  If the order requires money to be executed, then Congress could deny the president’s request for an appropriations bill.  Congress could also remove the subject matter of the order from the president’s jurisdiction.  For example, if an executive order were issued to permit oil exploration on federal lands, Congress could pass a law removing federal laws from the jurisdiction of the Department of Interior and place them under a new, independent regulatory agency.  Finally, Congress can always propose a constitutional amendment that targets the specific executive action and make it unconstitutional.

Similarly, the Supreme Court may declare an executive action as unconstitutional, as it did in the landmark decision Youngstown Sheet and Tube Co. v. Sawyer (1952).3

  1. The other types of executive actions include proclamations, memos, and resolutions.
  2. In Re Debs (1896), the unanimous Court ruled that an injunction issued by Pres. McKinley as an executive order to halt a strike led by Debs was constitutional.
  3. Pres. Truman ordered the US military to take over the operation of American steel companies, because a strike by steel workers during the Korean War imperiled the war effort.  The Court declared his order unconstitutional.

Additional Information

For additional information on presidential powers and executive orders, see:  Andrew Rudalevige,  By Executive Order: Bureaucratic Management and the Limits of Presidential Power, Princeton University Press, 2024,  and  Sidney Milkis and Michael Nelson,  The American Presidency: Origins and Development, 9th ed. Congressional Quarterly Press, 2024.
 

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