Executive Orders: Which Branch Has The Final Say?

The U.S. Supreme Court has held that all executive orders from the president must be supported by the Constitution, whether from a clause granting specific power or by Congress delegating such authority to the executive branch. The federal judiciary has reviewed the constitutionality of legislation enacted by Congress since the early days of the republic. The Court's decision in Marbury v. Madison (1803) confirmed that federal courts also possess the authority to review the actions of the executive branch. The judiciary has also been called upon to assess the validity of formal directions the president has issued to executive branch agencies and officials, most commonly in the form of executive orders.

Explore related products

An Introduction to Constitutional Law: 100+ Supreme Court Cases Everyone Should Know

$26 $34.95

The Constitution of the United States of America: The Declaration of Independence, The Bill of Rights

$9.99 $9.99

Constitutional Law: [Connected eBook with Study Center] (Aspen Casebook)

$238.02 $359

Constitutional Law: Principles and Polices (Aspen Treatise)

$97.32 $126.95

Constitutional Law For Dummies

$18 $29.99

The Constitution of the United States and The Declaration of Independence

$1.99 $14.95

The Supreme Court decides if executive orders are constitutional

Executive orders are written directives issued by the president, with the force of federal law. They are used to manage operations of the federal government and direct the activities of the executive branch. While the Constitution does not explicitly define executive orders, the president derives their power to issue such orders from the Constitution and powers granted by Congress.

The Supreme Court has the authority to review the constitutionality of executive orders. The Court has ruled that executive orders must be supported by the Constitution, specifically rooted in Article II, which vests executive powers in the president. In the Youngstown case, the Supreme Court struck down President Truman's executive order seizing control of steel mills during a labor dispute, as it was deemed an invalid exercise of power. The Court found that the president did not have the express or implied power to seize private property amid a labor dispute.

Federal courts, including the Supreme Court, play a crucial role in reviewing the constitutionality of executive orders. They assess whether the president has exceeded their authority or violated federal law. The non-delegation doctrine holds that Congress cannot delegate its legislative power to the executive branch, and courts have invalidated orders on these grounds.

The Supreme Court's decisions on executive orders help define the scope of presidential powers and maintain the checks and balances within the constitutional system. The Court's rulings set precedents and provide guidance for future executive actions, ensuring that the president's actions are in line with the Constitution and do not infringe on the powers of other branches of government.

In summary, while the president has the power to issue executive orders, the Supreme Court serves as a critical check on this power, ensuring that the orders are rooted in the Constitution and do not exceed the president's authority. The Court's decisions in this area are an essential aspect of interpreting and upholding the separation of powers outlined in the Constitution.

Congress can revoke executive orders

The U.S. Constitution vests the legislative power of the country in Congress alone. However, the line between legislative and executive power is not always clearly defined. While the president has the power to issue executive orders, these orders must be rooted in Article II of the Constitution or enacted by Congress in statutes.

Executive orders are written directives, signed by the president, that order the government to take specific actions to ensure "the laws be faithfully executed". They are often used to tell federal agencies how to implement a statute. For example, Congress can declare a certain drug legal or illegal, but the president can use an executive order to tell the Department of Justice whether prosecuting drug cases is a priority.

Executive orders cannot override federal laws and statutes, and they cannot create new statutes. The Constitution gives Congress control over legislation, taxation, spending, and certain war powers.

Congress can revoke an executive order by passing a new law to override it, but only if Congress has the constitutional authority to legislate on the issue. Congress can also revoke an executive order by attempting to withhold spending on programs created by the order.

Federal courts can also invalidate executive orders if they are found to be unconstitutional or violate federal statutes. The Supreme Court has held that all executive orders must be supported by the Constitution, and courts have the authority to review the constitutionality of executive orders. In some cases, a court may find that an executive order is invalid because the president does not have the power to make law, but rather to clarify or further a law put forth by Congress or the Constitution.

Executive orders are directives from the president

The president has two primary sources of power to issue directives and executive orders: the Constitution and powers granted to the president by Congress. Article II of the Constitution vests executive powers in the president, making them the commander-in-chief, and requiring that the president "shall take Care that the Laws be faithfully executed". The president is also understood to have broad powers in areas such as control and operation of the federal government, federal agencies, and foreign affairs.

While executive orders can have the same effect as federal law under certain circumstances, they cannot override federal laws and statutes. They can, however, tell federal agencies how to implement a statute. For example, an executive order can be used to tell the Department of Justice whether prosecuting certain drug cases is a priority.

The Supreme Court has held that all executive orders from the president must be supported by the Constitution, whether from a clause granting specific power or by Congress delegating such power to the executive branch. The courts have the authority to review the constitutionality of executive orders and have occasionally invalidated orders on the basis that Congress overstepped its bounds or that the president lacked the authority to issue them.

Congress can also pass a new law to override an executive order, but only if it has the constitutional authority to legislate on the issue. Congress has also used other methods to restrain executive orders, such as attempting to withhold spending on programs created by an executive order.

Explore related products

Constitutional Law (University Casebook Series)

$296.95

Examples & Explanations for Constitutional Law: Individual Rights

$76.95 $76.95

Examples & Explanations for Constitutional Law: National Power and Federalism

$59.81 $76.95

Constitutional Law [Connected eBook with Study Center] (Aspen Casebook)

$100 $345

Constitutional Law: a QuickStudy Laminated Reference Guide

$8.32 $8.95

A Short & Happy Guide to Constitutional Law

$28 $28

Executive orders are not defined in the Constitution

Executive orders are written directives issued by the president with the same power as federal law. They are numbered consecutively and are used to manage the operations of the federal government. Executive orders are not explicitly defined in the Constitution and instead rest on historical practice, executive interpretations, and court decisions. The Constitution does not explicitly permit the use of executive orders, and the line between legislative and executive power is not always clearly defined.

The constitutional basis for executive orders is the president's broad power to issue directives. Article II of the Constitution vests executive powers in the president, making them the commander-in-chief, and requiring that the president "shall take care that the laws be faithfully executed". While an executive order can have the same effect as federal law in certain circumstances, Congress can pass a new law to override it, subject to a presidential veto.

The president has two primary sources of power to issue executive orders: the Constitution and powers granted by Congress. Executive orders must be rooted in Article II of the Constitution or enacted by Congress in statutes. Attempts to block executive orders have been successful when they exceeded the president's authority or could be better handled through legislation. The Supreme Court has held that all executive orders must be supported by the Constitution, and federal courts have occasionally invalidated orders on the basis that Congress overstepped its bounds.

Congress can also grant additional powers to the president, including the use of executive orders. For example, Congress has granted the power to "suspend the entry of all aliens or any class of aliens" if the president finds that their entry would be detrimental to the interests of the United States. Congress can also approve an executive order after it is issued by including its text in a statute.

The extent to which the president may exercise military power independently of Congress remains an unresolved constitutional issue. While all presidents since the passage of the War Powers Resolution have complied with its terms, they have maintained that they are not constitutionally required to do so.

Courts can deem executive orders unlawful

The US Constitution has a set of checks and balances to prevent any one branch of the government from becoming more powerful than the others. While the president has the power to issue executive orders, these orders can be challenged in court.

Federal courts have the authority to review the constitutionality of executive orders. They can deem executive orders unlawful if they violate the Constitution or a federal statute. This was demonstrated in the case of Youngstown, where the Supreme Court struck down an executive order issued by President Harry Truman in 1952. Truman's order attempted to seize control of the steel mills during a labor dispute in the midst of the Korean War. The Court ruled that the president did not have the express or implied power to seize private property amid a labor dispute and that his order was invalid.

The Supreme Court has also struck down executive orders on the basis that Congress overstepped its bounds by authorizing the president to make the order. In Panama Refining Co. v. Ryan (1935), the Court found that Congress had impermissibly delegated its legislative authority to the president when it provided no standards or guidelines for the president to follow in deciding whether to allow or prohibit the transport of petroleum.

Courts may strike down executive orders on the grounds that the president lacked the authority to issue them or that the order is unconstitutional in substance. This is particularly relevant when orders are based on inherent presidential powers not authorized by Congress, as these orders are more likely to raise separation-of-powers concerns. In these cases, courts must determine whether the president has exercised legislative power belonging solely to Congress.

While the courts have the power to deem executive orders unlawful, ensuring compliance with their decisions can be challenging. Federal courts, including the Supreme Court, have limited powers to enforce their rulings. While they can punish disobedience using contempt powers, this does not guarantee compliance. Historically, public confidence in the judiciary and respect for courts as fair arbiters have resulted in substantial compliance with court orders. However, in rare cases, court decisions have been so controversial that they have inspired defiance, even from the executive branch.

Frequently asked questions