Executive orders are powerful tools presidents use to direct federal agencies and implement policies without Congress. They've grown in importance as presidents seek to bypass legislative gridlock and assert authority, especially in national security and foreign affairs.

While executive orders carry the force of law, they're subject to constitutional and statutory limits. Courts can review and overturn them, but often defer to executive power. Congress can also check executive orders through legislation and funding restrictions.

Executive Orders: Definition and Legal Basis

Definition and Types of Executive Orders and Directives

• Executive orders are directives issued by the President to federal agencies, officials, or employees in their capacity as head of the executive branch
  • They have the force of law if issued pursuant to a statutory mandate or delegation of authority from Congress
• Presidential directives encompass executive orders as well as other types of unilateral actions by the President
  • These include presidential memoranda, proclamations, national security directives, and signing statements
  • The legal basis and impact varies by type of directive

Constitutional Authority and Publication Requirements

• The President's authority to issue executive orders and directives stems from both express and implied constitutional powers
  • Article II vests "executive power" in the President
  • The President is directed to "take care that the laws be faithfully executed"
• Executive orders must be published in the Federal Register per the Federal Register Act
  • Other presidential directives may have different or no publication requirements

Executive Orders: Historical Use and Impact

Growth of Executive Orders in the Modern Presidency

• Executive orders have been used by every President since George Washington
  • Famous examples include the Emancipation Proclamation, desegregation of the military, internment of Japanese-Americans during WWII, and establishment of the Peace Corps
• The use of executive orders has expanded significantly in the modern presidency due to factors such as:
  • Growth of the administrative state
  • Congressional gridlock
  • Expansion of presidential power, especially in foreign affairs and national security

Policy Impact and Controversies

• Presidents have used executive orders to make major policy changes, direct federal agencies to take certain actions, respond to emergencies, implement legislation, and even create new programs
  • This allows Presidents to bypass Congress
• Critics argue the increased use of executive orders to make policy changes violates separation of powers
  • Defenders contend they are a necessary tool for the President to "take care that the laws be faithfully executed" in an era of congressional inaction

Limitations on Executive Orders

Constitutional and Statutory Constraints

• As creations of the executive branch, executive orders may not contravene the Constitution or statutes
  • They are invalid if they are incompatible with the express or implied will of Congress
• In the Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer), the Supreme Court laid out a framework for analyzing the validity of executive orders:
  • Orders are most likely valid when issued pursuant to express/implied congressional authorization
  • In the absence of a congressional grant or denial of authority, the order may be valid in a "zone of twilight" depending on the imperatives of events and the President's inherent powers
  • Orders are likely invalid when issued in the face of congressional disapproval

Judicial Review and Deference to the Executive

• Executive orders are subject to judicial review and may be overturned if a court finds they:
  • Violate constitutional rights
  • Violate separation of powers
  • Exceed statutory authority
• However, courts often defer to the executive branch, especially in matters of:
  • National security
  • Foreign affairs
• This judicial deference can limit the effectiveness of the courts as a check on executive power

Executive Orders: Congressional and Judicial Oversight

Legislative Checks and Balances

• As a co-equal branch, Congress can pass legislation to modify, overturn, or defund an executive order
  • However, any such bill is subject to presidential veto, requiring a 2/3 majority in both houses to override
• Congress also has oversight powers to probe controversial orders
  • These include investigations and hearings
  • In extreme cases, Congress could potentially impeach a President for issuing unconstitutional orders
• The Power of the Purse is the most potent congressional check
  • Congress can restrict funds to agencies to limit their ability to carry out objectionable orders
  • However, funding battles often end in political standoffs

Judicial Challenges and Compliance

• Aggrieved parties with standing can challenge executive orders in federal court, arguing they are unconstitutional or exceed statutory authority
  • If an order is overturned, the executive branch must comply with the ruling
• However, as noted, courts have historically been deferential to executive power, especially on matters deemed to be within the President's constitutional purview
  • This includes areas like foreign affairs and national security
• The effectiveness of judicial review as a check depends on the willingness of courts to scrutinize and overturn problematic orders