Principles of Government: Executive Orders

Written by Tyler Zimpfer, Law Fellow with OSU Ag & Resource Law and the National Agricultural Law Center

Welcome back to our blog series on “Principles of Government,” where we explain key legal doctrines shaping the current public discourse. In this blog post, we’ll cover an action that’s been taken by every U.S. President since our country’s founding – the Executive Order (EO). Oftentimes, EOs are the primary tool Presidents use to “hit the ground running” with their agenda and campaign promises. A President is likely to issue hundreds of EOs over the course of a term in office.

What is an EO and how does it arise?

An EO is a written document signed by the President, typically directed to government officials in the executive branch. A President uses an EO to manage government operations and carry out laws consistent with the President’s policies and wishes.  The President can also modify or revoke EOs issued by previous administrations. An EO has the force and effect of law if it is founded on authority given to the President by the Constitution or by statute.

Most of us see the President sign an EO in the Oval Office or hear about it in the media, but the process to write and approve the actual text of the EO is more complex than the signature event indicates. While there are few enforceable EO guidelines, there is a process a President follows to create an EO.  Ironically, the process for Eos was established in an EO signed by President John F. Kennedy.  

The EO procedure begins with the President who, with assistance of staff, drafts an EO.  The President sends the EO to the Office of Management and Budget (OMB) with the explanation of the authority, purpose, and potential effect of the proposed actions in the EO. The OMB can refine the EO and coordinate comments from federal agencies. Once the OMB approves it, the EO goes to the Attorney General who reviews whether the order complies with the Constitution and any related laws. The Attorney General then sends an EO to the Office of the Federal Register. Like a high school English teacher, the Federal Register reviews for any grammar or typing errors. The EO then goes back to the President to be formally signed. Despite this choreography, the President can still sign an EO if anyone in the review process doesn’t approve of the EO. Just like regulations issued by an agency, EOs are numbered and published in the Federal Register, the federal government’s official publication of actions taken each day.

While EOs receive the most media attention, Presidents can also act in other ways to manage the operations of the executive branch, such as through executive memoranda and proclamations. Executive memoranda are similar to EOs but have less stringent requirements. The President is not required to explain legal authority or budgetary impacts of a memorandum. Proclamations are less formal and communicate information on holidays, special observances, trade, and policy, but do not have the force and effect of law.

Does the EO power derive from the U.S. Constitution?

The Constitution does not directly state that the President has the power to issue EOs. The President issues EOs through the inherent authority of the executive power, authority found in Article II of the Constitution. More specifically, Section I of Article II, which states “[t]he Executive Power shall be vested in a President of the United States of America,” is viewed as giving the President the authority to issue EOs and take other executive actions. The Constitution also states in Article II that the President shall “take Care that the Laws be faithfully executed,” which some claim is both authority for and a limitation on a President’s EO powers.

Is there a limit to what a President can do with an EO?

In simple terms – yes, there are limits. A President may assert that an EO holds the “force and effect of law” or the same power as a law passed by Congress. However, Presidents must issue an EO pursuant to legal authority found either in the Constitution or through a delegation of power from Congress. Because Article II’s grant of executive power is broad and many laws are ambiguously written, a President may try to stretch the scope of an EO to the outer limits of the President’s authority. When there is a question of whether a President has exceeded its executive authority in an EO, Congress may choose to support or oppose the actions through its legislative power.

Federal courts have the ability to review the legality of an EO, the same as reviewing a law passed by Congress. Courts examine both the scope of the EO  and the Constitutional provision or statute instilling authority for the order. Courts will look at the actual text of the EO, agency interpretations, and any policy and public statements made in relation to the EO. An EO may not be legally enforceable if a court determines that the President did not have the authority to issue the order.

Find the Federal Register compilation of EOs at https://www.federalregister.gov/presidential-documents/executive-orders and learn more about Executive Orders through these resources:  Executive Orders: A Beginner’s Guide, Executive Orders: An Introduction, and Executive Orders and Presidential Transitions.