Executive Orders - What Authority Does a President Have?

All but one President of the United States or POTUS, have issued Executive Orders or EO's starting with George Washington in 1789.  EO's are directives drafted, signed and issued by the offices of POTUS relating to management of the federal government.  There have been more than 14,100 EO's issued over the last 235 years, with President Franklin D Roosevelt topping the charts at 3,700+.  Every EO has the force of law, without the approval of Congress, and without the ability of Congress to revoke them.  Congress has no power to strike down an EO, and its only recourse is to pass legislation that overrides the EO or removes funding making the EO difficult to deploy.  Only a sitting POTUS can revoke an EO, which seldom occurs, otherwise existing EO's remain the law of the land in perpetuity, or until they expire upon their own terms.  Consequently, EO's have drawn criticism on the basis they allow POTUS to act as a monarch by creating and enforcing laws without any  approval from Congress.

There is no express authority in the Constitution of the United States that authorizes POTUS to issue EO's.  Rather, such authority is inferred from loose language within Article II of the Constitution.  Article II provides “The executive power shall be vested in a President of the United States”  and “He shall take care that the Laws be faithfully executed”.  No mention is made about EO's.  The Supreme Court of the United States or SCOTUS has held that EO's must be based upon this ambiguous language or upon statutes enacted by Congress.  Despite this limitation, SCOTUS is reluctant to strike down EO's unless POTUS seeks to create law, rather than clarifying or managing existing laws.  Nowadays, EO's are always carefully drafted to expressly indicate they are not creating law, but rather managing or enforcing existing laws, to avoid being stricken down by SCOTUS.

EO's generally have a consistent format, consisting of four parts: Heading, Title, Introduction, and Body.  The Heading includes the date and number of the EO.  All EO's issued after 1876 bear a sequential number rendering them easier to locate and identify.  The Title identifies the purpose and scope of the EO.  The Introduction is written in the first person, attempts to legitimize the authority to issue the EO by citing the the Constitution, statutes, or prior EO's, and provides a legal rationale for the EO.  The Body of the EO identifies the orders, actions needed to effect the orders, as well as any studies or investigations supporting the need for the EO.  Finally, most every EO authorizes its publication in the Federal Register, a daily publication of the United States government.

Many of the federal laws throughout history, including many still existing today, are based entirely upon EO's including:

• Roosevelt's prohibition against the hoarding of gold coins or bullion of 1934
• Roosevelts establishment of the Manhattan Project or Atomic Bomb in 1941
• Truman's desegregation of the US Military in 1948
• Johnson's establishment of the Warren Commission in 1963
• Ford's pardon of Richard Nixon from prosecution for Watergate in 1974
• Carters formation of FEMA in 1979
• Trump's immigration order and its subsequent rescission by Biden

Consequently, the ability of POTUS to issue and enforce EO's has a very powerful and potentially long lasting impact upon citizens of the United States.

In addition to EO's, POTUS can also issue Executive Proclamations or EP's and Executive Memoranda or EM's.  POTUS can make declarations over management of the federal government under either EO's, EP's or EM's.  All three become the law of the land once issued by POTUS, while only EO's and EP's must be published in the Federal Record.  The principal difference between an EO and EP or EM is that EO's typically govern the actions of the federal government, whereas EP's and EM's govern the activities in the private sector.  The principle similarity of all three, including EO's, EP's and EM's is that the authority of POTUS must be based upon either the Constitution or statutory authority.  The most famous EP is Lincoln's Emancipation Proclamation of 1863, which remains a cornerstone of civil rights statutes.  The most well known EM is Biden's Mandatory COVID-19 Vaccination of all Military Personnel Memorandum of 2021, later overridden by Congress in 2022.

Every POTUS since Washington has broad authority to issue EO's, EP's and EM's so long as they are empowered to do so by either the Constitution or statutes.  And all modern POTUS's have used this authority to advance their policies and agendas.  But do not be fooled by political  rhetoric, SCOTUS has the ability to strike down and Congress has the ability to override, or defund EO's,  EP's, or EM's if POTUS oversteps its authority and tries to act like a monarch.