George Washington declared in 1793 the neutral position of United States in the war between France and Britain. This was one of the first executive orders issued by a U.S. president. Thomas Jefferson used an executive order in 1803 to implement the Louisiana Purchase. Andrew Jackson issued orders to remove Native American tribes under the Indian Removal Act of 1830.
The earlier executive orders from former U.S. presidents were not formally numbered. Numbering began in the early 20th century to create a system of organization and reference. These presidential actions have since evolved as a means for presidents to direct executive branch operations, enforce laws, and respond to urgent matters without waiting for congressional approval.
The Limits of Presidential Power: Understanding Restrictions in Executive Orders
Scope of Legitimacy and Applications
The authority of a sitting U.S. president to issue executive orders stems primarily from Article II of the U.S. Constitution. Section 1 of Article II grants the president “executive power” and Section 3 requires him or her to “take care that the laws be faithfully executed.” It is still worth noting that the U.S. Constitution does not explicitly mention executive orders.
Moreover, as demonstrated by several legislations, the U.S. Congress can also delegate powers to the president. Consider the National Emergencies Act of 1976 as an example. This law allows the president to declare emergencies and issue executive orders to respond. The legitimacy of an order that relies on a law passed by Congress is considered stronger.
The aforementioned legal bases of executive orders in the United States context indicate that the delegation of discretionary power to issue such orders or presidential actions and directives must be supported by either the U.S. Constitution itself or expressed legislative statutes passed by the U.S. Congress and implied powers based on expressed powers.
It is still important to underscore the fact that executive orders are not laws. These are legally binding directives issued by the U.S. president to manage the operations of the federal executive government and direct federal agencies and officials to take specific actions. Executive orders are applicable to the entire executive branch of the federal government.
An executive order is also not permanent. It can be rescinded by the sitting president who issued the order itself or by the new president. Most orders have been revoked, modified, or replaced by new presidents. For example, when Joe Biden assumed office in 2021, he rescinded multiple executive orders issued under the first Trump administration.
Judicial Review and Legislative Actions
Remember that executive orders are not laws. They must operate within the boundaries of the U.S. Constitution and existing federal laws. A particular executive order cannot override a provision in the Constitution or supersede and disregard laws passed by the U.S. Congress. Hence, if there is a conflict, either the Constitution or the federal law prevails.
Executive orders are subject to judicial review. District Courts can temporarily block an executive order. The Supreme Court can strike down and permanently block orders deemed unconstitutional or exceeding the limits of presidential authority and prevent similar executive orders from being issued in the future because its rulings become judicial precedents.
The legal basis for judicial review comes from the power of the judiciary branch to interpret laws and hear cases and controversies arising under the Constitution and federal laws. This is enshrined and described in Article III of the United States Constitution. The Supremacy Clause of Article VI further states that the U.S. Constitution is the Law of the Land.
Moreover, in the landmark Marbury v. Madison ruling in 1803, the principle of judicial review was established. This case dealt with legislative acts but its principle extends to directives or actions of the executive branch of the federal government. The Administrative Procedure Act of 1946 also provides the basis for lawsuits challenging executive orders.
Individuals, state governments, and business and nonprofit organizations can file a lawsuit before a district court to challenge a particular executive order. The decision of the district court can be contested before the Court of Appeals. The Supreme Court can issue a final ruling via further request for appeal or it can take a case if it deems it significant.
Summary and Takeaways: The Limitations of Executive Orders in a Nutshell
Remember that executive orders are the written directives of the sitting U.S. president toward the executive branch of the government. These can be compared to internal memoranda sent to the members of the executive branch like cabinet officials and agencies. They are not considered laws but are directives telling how to enforce existing laws, which policies to pursue or fine-tune policy choices, and how to manage the resources of the executive branch.
It is also important to note that executive orders do not directly affect private individuals or state governments unless connected to federal funding and regulations. However, because these orders can decide how and to what degree legislation will be enforced, determine federal funding utilization, instruct how to deal with emergencies, or direct the actions of the armed forces, they still have significant influence over the internal affairs of the government.
A fundamental limitation of executive orders is that they cannot override the Constitution or supersede federal statutory laws. These orders must be rooted in the constitutional authority of the president. A president cannot also use executive orders to allocate funds that Congress has not appropriated. Another limitation of executive orders is that they are not permanent. A subsequent president can easily overturn or modify orders from the previous administration.
The foremost maneuver against an executive order is judicial review. This involves filing a lawsuit before a federal court. Individuals, state governments, and organizations can challenge a particular order via a lawsuit. District courts can then block its implementation if it deems it unconstitutional or exceeding the constitutional or legal limits of presidential authority. A particular Supreme Court ruling can provide a more permanent blow to an executive order.
Several rulings demonstrated the limits of executive orders. For example, Harry Truman ordered the federal government in 1952 to seize and operate steel mills during the Korean War to prevent a labor strike via EO 1030. However, in Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court ruled that the president lacked the authority to seize private property without congressional approval. This case set a key precedent limiting presidential power.
The first Trump administration issued EO 13769 or the infamous Travel Ban which restricted the immigration of individuals from several predominantly Muslim countries. However, in State of Washington v. Trump, a district court temporarily blocked the order due to constitutional concerns, including religious discrimination. This compelled the Trump administration to pursue multiple revisions until the Supreme Court upheld its constitutionality.