Malcolm Rivera
Executive orders are directives issued by the president of the United States to agencies and staff within the executive branch, ordering them to take or stop taking specific actions. They are used to enforce laws passed by Congress and to implement policies and laws, but they cannot override federal laws, statutes, or the Constitution. Executive orders are not mentioned in the US Constitution, but a president's authority to issue them is generally accepted as part of their executive power. Once issued, executive orders are treated as lawful and acted upon by federal agencies and officials, but they can be challenged in federal court if they are deemed to be unconstitutional, unlawful, or harmful to civil liberties.
| Characteristics | Values |
|---|---|
| Definition | Presidential directives issued to agents of the executive department by its boss |
| Who can issue it? | The President |
| What does it direct? | Executive branch agencies and staff |
| What does it ask the staff to do? | Take or stop taking specific actions |
| What does it ask the agencies to do? | Write a report, undertake an investigation, or promulgate a new regulation |
| What is it based on? | Existing statute or a constitutionally enumerated presidential power |
| What is it not? | A blank check for the president to exercise his will without constitutional checks and balances |
| What can it not do? | Override federal laws and statutes |
| What can the President not do? | Use an executive order to sidestep checks and balances or take over powers from other branches |
| What happens once it is issued? | Federal agencies and officials treat it as lawful and begin to effectuate the order |
| What happens if it is unlawful? | An aggrieved party must challenge the order in federal court |
| What happens if it is deemed unlawful? | It is invalidated |
| Who can invalidate it? | Congress, the judiciary, or a future president |
| What happens when a new president is elected? | The new president may revoke, modify or make exceptions from any executive order |
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What You'll Learn
The US Constitution and executive orders
Executive orders are written, signed, and published directives from the President of the United States that manage the operations of the federal government. They are numbered consecutively and are considered to have the force of law.
The US Constitution is the legal basis for executive orders. Article I of the Constitution gives Congress the power to pass laws, while Article II gives the President the power to execute these laws. Article III gives the judiciary the power to review and decide whether actions taken by the executive or legislative branch are lawful and constitutional.
Article II, Section 1, Clause 1 of the Constitution states: "The executive Power shall be vested in a President of the United States of America." Sections 2 and 3 describe the President's powers and duties, including the obligation to "take care that the Laws be faithfully executed." This means that the President is responsible for ensuring that the laws passed by Congress are carried out as intended. Executive orders are one way for the President to exercise this power by providing specific instructions to federal agencies on how to implement laws.
Executive orders cannot create new rights or obligations that are not already rooted in an existing statute or a constitutionally enumerated presidential power. They are subject to judicial review, and a federal court can declare an executive order unlawful if it violates the Constitution or federal law. All three branches of the US government have the power to overturn executive orders. Congress can pass legislation that makes it difficult or impossible to carry out an executive order, such as by removing funding. The President can also overturn an existing executive order by issuing a new one.
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The President's powers and limitations
The President of the United States has a wide range of powers, but also faces many limitations. The President is the commander-in-chief of the United States Armed Forces and all federalized militias and, as such, has the power to launch, direct and supervise military operations, order or authorise the deployment of troops, and unilaterally launch nuclear weapons. The President also has the power to approve or veto bills and resolutions passed by Congress, grant reprieves and pardons for offences, make treaties with the advice and consent of Congress, and nominate ambassadors and other officials, again with Congressional consent.
The President is responsible for executing the laws that Congress passes, and can direct officials on how to interpret the law, although this is subject to judicial review. They can also convene or adjourn Congress, and direct their administration's priorities.
However, the President cannot make laws, declare war, or decide how federal money is spent. They cannot interpret laws, and they cannot choose Cabinet members or Supreme Court Justices without Senate approval. The President's power to direct troops without Congressional authorisation is also a matter of debate.
Executive orders are a means by which the President can exercise their political power to implement policies and laws. They must be based on an already existing statute or a constitutionally enumerated presidential power. An executive order can be invalidated if the President lacked the authority to issue it, or if its substance violates the Constitution. All three branches of the US government have the power to overturn executive orders.
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How executive orders are challenged
Executive orders are a powerful tool that allows presidents to set policy without new laws from Congress. However, they can be challenged and even overturned. This is how:
Legal Standing
Firstly, only those qualified can challenge an executive order. An entity or individual must have standing to sue. They can do this by showing they are directly affected by the order. For example, a business owner affected by new regulations imposed by an executive order can file a lawsuit arguing that the order harms their business or violates their rights. Individuals whose rights are directly impacted by executive orders, such as those affecting immigration status or healthcare, may also bring a challenge.
Grounds for Challenge
Executive orders can be challenged if they violate the U.S. Constitution. This is the most common reason for challenging an order. For example, an executive order that infringes on First Amendment speech rights or the Fourteenth Amendment’s guarantee of equal protection would be unlawful.
State governments can challenge executive orders on the grounds that they infringe upon states’ rights or violate the principles of federalism. States may challenge orders that impose federal regulations on state-run programs or interfere with state authority.
Judicial Review
Once challenged, a court has the authority to review the executive order. The order can be blocked or altered if the court determines it is unconstitutional. Federal courts may overturn an executive order if it is found to be unlawful or determined to exceed the scope of a president’s authority.
Political Challenge
Lawmakers cannot veto an executive order, but they can challenge it as part of the checks and balances built into the US government system. The ability to challenge an executive order is often used as a political tool—Republicans will challenge the executive orders of a Democratic president and vice-versa.
Other Challenges
While there is little opportunity for interested parties to engage in the development of presidential actions, there are some avenues for attempting to influence executive action. This includes discussions with White House staff and congressional engagement, although Congress rarely intervenes, and any resulting legislation would be subject to a presidential veto.
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Historical examples of executive orders
Executive orders are directives issued by the President of the United States to manage the operations of the federal government. They are a powerful tool that can have a significant impact on the internal affairs of the government, deciding how and to what degree legislation will be enforced, dealing with emergencies, waging wars, and fine-tuning policy choices.
Franklin D. Roosevelt's Executive Order 6102
In 1933, in the midst of the Great Depression, President Franklin D. Roosevelt issued Executive Order 6102, which compelled Americans to trade in their personal gold for cash, in an attempt to increase the government's cash reserves.
Abraham Lincoln's Emancipation Proclamation
On January 1, 1863, President Abraham Lincoln issued the Emancipation Proclamation, declaring the freedom of more than three million slaves in the Confederacy. While the order only truly freed slaves in Union-controlled states, it laid the groundwork for the eventual emancipation of millions more.
Franklin D. Roosevelt's Executive Order 8807
In 1941, President Franklin D. Roosevelt signed Executive Order 8807, which established the Office of Scientific Research and Development (OSRD) in response to the race to create an atomic bomb. The OSRD was given unlimited resources, and its Los Alamos Laboratory became the site where the atomic bomb was designed and tested.
Harry S. Truman's Executive Order 10340
During the Korean War, President Harry S. Truman issued Executive Order 10340, which ordered the seizure of private steel production facilities to support the war effort. However, the Supreme Court invalidated this order, ruling that it exceeded the president's constitutional powers.
Donald Trump's Executive Orders
In his first two weeks in office, President Donald Trump signed nearly 40 executive orders covering a wide range of policy areas, including immigration and public school. Some of these orders were controversial and challenged in court, such as his rescinding of Johnson's executive order requiring government contractors to comply with civil rights obligations.
These examples demonstrate the significant impact that executive orders can have on the course of history, for better or worse. They highlight the power of the president to implement policies and manage the operations of the federal government through the use of executive orders.
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Executive orders and their impact on civil rights
An executive order is a means for the US President to enforce the laws passed by Congress. The President has the power to issue these orders under Article II of the US Constitution. Executive orders can be used to implement policies and laws, but they must be based on existing laws or powers that the Constitution grants the President.
Executive orders have had a significant impact on civil rights in the United States. Notably, President Trump's use of executive orders has been controversial in this regard. Trump has used executive orders to overturn previous orders and policies, particularly those concerning civil rights. One example is Trump's revocation of a Biden-era discipline guidance, which aimed to address racial disparities in school discipline. The original order advised school districts that they may be violating civil rights laws if they unfairly disciplined students from different groups. Trump's order, however, claimed that this approach failed to create a safe and welcoming environment and ignored the history of disproportionate suspension and expulsion of Black and Brown students.
Trump has also been accused of misusing executive orders to attack civil liberties and rights. For instance, he rescinded an order concerning the civil rights obligations of federal contractors, undermining protections for employees and signalling a potential lack of priority for equal protection. Additionally, Trump's orders have targeted the rights of transgender people and attempted to overturn birthright citizenship, impacting civil rights and immigration.
Furthermore, Trump's executive orders have addressed college accreditation and civil rights rules. One such order instructed the Attorney General to "repeal or amend" Title VI regulations, which include disparate impact liability. This concept of disparate impact considers actions as discriminatory if they disproportionately affect people from different groups, regardless of intent. While some argue that this hinders civil rights, others believe it prevents merit-based decisions in hiring and employment, making it challenging for employers to act in the best interests of all involved parties.
In conclusion, executive orders can significantly impact civil rights, and their usage has been a notable feature of the Trump administration. While they can be an effective way to implement policies, the potential for misuse or harm to civil rights underscores the importance of judicial review and checks and balances within the US government.
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Frequently asked questions
An executive order is a directive issued by the president to the executive branch of the government. It orders the government to take specific actions to ensure that the laws passed by Congress are correctly executed.
Executive orders are used to signal priorities and direct the administration. They are also used to implement policies and laws.
Yes, an executive order can be challenged in federal court if it is deemed to be unconstitutional or unlawful. All three branches of the US government have the power to overturn executive orders.
Yes, an executive order can be revoked, modified, or have exceptions added by the issuing president or a succeeding president.
