Malcolm Rivera
Governors have broad executive authority to act within their states, and they may issue executive orders to advance new policies and programs. These orders are based on existing constitutional or statutory powers and do not require state legislative approval. However, they are not the same as statutes passed by state legislatures and are not considered legislation. While executive orders may have the force of law, they must be rooted in the constitution or enacted by Congress. So, does a governor's executive order override the constitution? The answer is no. Executive orders are subject to judicial review and may be overturned if they lack support from the constitution or statute.
| Characteristics | Values |
|---|---|
| Nature of executive orders | They are directives by the president of the United States that manage operations of the federal government |
| Requirement of approval from Congress | Not required |
| Overriding a directive of the legislature | A governor cannot override a directive of the legislature by an executive order |
| Basis of executive orders | Constitutional or statutory powers of the governor |
| Powers of the governor | Broad executive authority to act within their states |
| Governor's authority to issue executive orders | Found in state constitutions, case law, or implied by the powers assigned to state chief executives |
| Governor's responsibility | To see that the laws are faithfully executed by the people and organizations that comprise the executive branch |
| Executive orders during a state of emergency | The powers of the governor may be expanded beyond their normal reach |
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What You'll Learn
Executive orders are not legislation
Executive orders are directives issued by the president of the United States or a state governor to manage operations of the federal or state government, respectively. While executive orders have the force of law, they are not legislation. They require no approval from Congress, and Congress cannot overturn them.
Executive orders are rooted in Article II of the US Constitution or enacted by Congress in statutes. They are based on the president's or governor's constitutional or statutory powers and do not require legislative action to take effect. The US Supreme Court has affirmed that executive orders must be supported by the Constitution or an act of Congress.
At the federal level, executive orders are issued by the president to manage the operations of the federal government and direct the actions of federal agencies. They are often proposed by federal agencies before being issued by the president. Executive orders may be used to set policy for federal agencies, although the degree of presidential power in this regard is disputed.
At the state level, governors possess broad executive authority to act within their states and may issue executive orders to carry out their responsibilities. The scope of gubernatorial power varies from state to state, and the authority to issue executive orders is derived from state constitutions, statutes, case law, or implied powers. State executive orders are typically used less frequently than bills passed by state legislatures and are often employed during public health emergencies or disasters.
While executive orders do not require legislative approval, they are subject to judicial review. They may be overturned by the courts if found to lack support from the Constitution or statutory law. In some cases, the courts have ruled that certain subjects fall under the authority of the legislature, and the governor does not have the power to act through executive orders in those areas.
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Governors' powers vary by state
The powers of a governor vary from state to state and are specified by their respective state constitutions, legislation, and traditions. Governors are responsible for advancing and pursuing new and revised policies and programs using tools such as executive orders, executive budgets, and legislative proposals and vetoes. They serve as the intergovernmental liaison to the federal government on behalf of their state.
The scope of gubernatorial power varies across states, with some governors having more authority than others. For instance, in most states, governors can serve two four-year terms, but this duration differs in New Hampshire and Vermont, which have two-year terms. All governors, except for Virginia's, may succeed themselves, although they may be limited to a specific number of consecutive or total terms. The minimum age requirement for governors ranges from no formal provision to 35 years old, while the U.S. citizenship requirement for gubernatorial candidates ranges from no formal provision to 20 years.
The authority to issue executive orders is derived from state constitutions, case law, or the implied powers assigned to state chief executives. Governors can use executive orders to demand budget cuts from state governments when the state legislature is not in session or when economic conditions deteriorate, reducing tax revenue below forecasted levels. They can also call the legislature into a special session.
Additionally, governors have the power to appoint department and agency heads, and in most cases, they appoint state court judges from a list of names submitted by a nominations committee. They can also grant clemency, which refers to the power to nullify legal consequences for a crime, restore civil rights, or shorten an individual's sentence.
During the COVID-19 pandemic, governors in several states, such as Florida, utilized their emergency powers to address the crisis. For example, Governor Ron DeSantis of Florida cited his authority under Article IV, Section (I)(a), Chapter 252 of the Florida Statutes to assert his exclusive power to "make the budget whole" and distribute federal emergency funding.
In summary, while governors across the United States share common roles and responsibilities, the extent of their powers differs across states, as defined by their respective state constitutions and legislative traditions.
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The US Constitution does not explicitly permit executive orders
Article Two of the US Constitution grants the president the power to determine how to enforce the law and manage the resources and staff of the federal government's executive branch. This discretionary power is required to be supported by either an expressed or implied congressional law, or the constitution itself. Executive orders are not legislation and do not require approval from Congress. However, they must be rooted in Article Two of the Constitution or enacted by Congress in statutes.
The authority for governors to issue executive orders is found in state constitutions, statutes, case law, or the powers assigned to state chief executives. State executive orders are based on existing constitutional or statutory powers and do not require any action by the state legislature to take effect. Governors are responsible for ensuring that the laws are faithfully executed by the executive branch, and they have broad executive authority to act within their states.
While executive orders do not require approval from Congress, they are subject to judicial review and may be overturned if they lack support by statute or the Constitution. The US Supreme Court has affirmed that executive orders must be supported by the Constitution, whether from a clause granting specific power or by Congress. For example, in the case of Chang v. University of Rhode Island, the court concluded that the governor lacked the authority to issue an executive order on a subject that belonged to the legislature.
In summary, while the US Constitution does not explicitly mention executive orders, they are considered valid as long as they are supported by the Constitution or enacted by Congress. Governors also have the authority to issue executive orders within their states, as long as they are based on existing constitutional or statutory powers.
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Governors' executive orders are based on existing powers
State executive orders are usually based on existing constitutional or statutory powers of the governor and do not require any action by the state legislature to take effect. Governors can use executive orders to demand budget cuts from state governments, for example, when the state legislature is not in session, and economic conditions take a downturn. Governors can also use executive orders to address emergency situations, such as natural disasters, weather events, energy crises, and public health emergencies.
The authority for governors to issue executive orders is found in state constitutions, case law, or is implied by the powers assigned to state chief executives. Governors can also use executive orders to create advisory, coordinating, study, or investigative committees or commissions, and to create or reorganize state agencies, boards, and commissions.
While the US Constitution does not explicitly mention executive orders, it does grant the president broad executive and enforcement authority to manage the federal government's executive branch. This includes the power to issue executive orders, which are directives that manage the operations of the federal government. These orders are subject to judicial review and may be overturned if they lack support by statute or the Constitution.
In summary, governors' executive orders are based on existing powers granted by their state constitutions and do not override the US Constitution. They are a tool used by governors to manage their states and ensure the faithful execution of laws, and they can be used in a variety of situations to address immediate needs.
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Executive orders can be overturned
Executive orders are directives issued by the president of the United States to manage the operations of the federal government. They are rooted in Article II of the US Constitution, which grants the president broad authority to determine how to enforce laws and manage the resources of the executive branch. While the president does not require congressional approval to issue executive orders, these orders are subject to judicial review and may be overturned if found to be unconstitutional or exceeding the president's authority.
Executive orders issued by state governors are not the same as statutes passed by state legislatures and are based on existing constitutional or statutory powers. Governors generally possess broad executive authority to act within their states, and this authority is exercised through executive orders or proclamations. The scope of gubernatorial power varies from state to state, and governors must act within the limits of their state constitutions and statutes.
In the case of Washington State, for example, the governor's authority to issue executive orders is limited. In the absence of specific statutory authority, the governor cannot create obligations, responsibilities, conditions, or processes having the force and effect of law through executive orders. This was demonstrated in the case of Young v. State, where the court concluded that neither constitutional provisions nor any statute authorized the governor's actions.
In summary, while executive orders carry the power of federal law, they can be overturned by the president, Congress, or the courts if they are found to be unlawful or unconstitutional. The ability of governors to issue executive orders with the force of law also varies from state to state, and they must act within the boundaries set by their state constitutions and statutes.
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Frequently asked questions
No, a governor's executive order cannot override the constitution. The authority for governors to issue executive orders is found in state constitutions and statutes, case law, or the powers assigned to state chief executives. Executive orders are not legislation and do not require approval from Congress, but they must be rooted in the constitution and can be overturned by the courts if they are found to lack constitutional support.
Governors use executive orders as a tool to advance and pursue new and revised policies and programs. They are usually based on existing constitutional or statutory powers and are often used in the midst of a public health emergency or disaster.
No, a governor's executive order cannot override a directive of the legislature. The court concluded in Chang v. University of Rhode Island that the governor lacked the authority to act with respect to a particular subject and that the power belonged to the Legislature.
A governor cannot create obligations, responsibilities, conditions, or processes having the force and effect of law by issuing an executive order without the authority to do so from a statute or constitutional provision.
