KATHERINE CABANISS: An executive order, explained
Presidential Executive Orders are in the news. What is an Executive Order? Legally, how are they produced and what is their effect?
The source of presidential power to issue executive orders lies in the Constitution of the United States. Article II, Clause 1 of the Constitution states that “the Executive Power shall be vested in a President.”
Similar clauses in Articles I and III set up the separation of powers between the Executive, Judicial, and Legislative branches of government. The President has a broad constitutional grant of power equivalent to the other two branches.
The “Executive Power” vested in the President is manifested through “executive actions.” Legally binding, executive orders permit the President to take unilateral action to govern. Presidents also have the right to issue memorandums, proclamations, and directives, which are less formal executive actions.
Since 1789, more than 13,000 executive orders have been issued by the 45 presidents. Only one President, William Henry Harrison, issued zero executive orders, likely because his presidential term was shortened by illness and death. President Franklin D. Roosevelt issued the greatest number of executive orders: more than 3500.
Executive orders command federal agencies to carry out presidential instructions and directions. The orders require performance by the agencies.
Executive orders are not statutes or laws that are unilaterally established by the president. Rather, the orders command government to take action in a specific way to implement the laws that have been passed already by Congress.
Executive orders are not without controversy. A president may be perceived as overstepping the boundary of Congressional authority to make, write, or create the laws.
The Executive Power does not give a president the authority to usurp Congress’s role in making laws. However, it does allow a president to circumvent Congress for the purpose of carrying out his agenda and goals within the existing framework of laws.
For example, the most recent Executive Order prohibits entry into the country of persons from certain countries. The order issues from the presidential power to direct federal agencies in their regulatory responsibilities regarding immigration.
The order references laws and statutes that have already been passed by Congress, and directs action pursuant to those laws.
Executive orders may be challenged. Legal challenges to presidential executive orders have been largely unsuccessful. In only two cases, one in 1952 and one in 1995, presidential orders were overturned in the courts. Typically, executive orders stand.
Congressional approval of executive orders is not required. The power of Congress to negate an executive order is limited. Congress may disapprove of an executive order by passing a law that overturns the order, or by denying funding to implement the order.
A president has broad power to issue orders, utilize laws and statutes, and require agencies to take action to further his goals and agenda. Watch for executive orders, and watch for action.
Katherine Cabaniss is the Judge in the 248th District Court in Harris County. She was formerly a prosecutor and Executive Director of Crime Stoppers. Contact her at firstname.lastname@example.org.