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The President's Prerogative: Understanding Executive Orders
01/10/2017 Executive Orders Andrew S
keywords: Trump Supreme Court Congress Funding

From the Emancipation Proclamation to the National Industrial Recovery Act to a 2012 order to stop deportations, executive orders are central to the way presidents do their jobs. As important as they are, many Americans do not understand them, and thus miss a crucial aspect of the Executive Branch:

Order Overview

Executive orders are directives from the President of the United States to the agencies of the Executive Branch. Though technically not legislation, they carry the full force of law for as long as they are in effect. Every US president except for William Henry Harrison, who only served for a month, has issued at least one executive order. President Franklin Roosevelt issued the most, signing 3,522 orders during his 12 years in office.

Although the US Constitution does not explicitly give the president the right to issue executive orders, it does say that he must “take care that the laws be faithfully executed.” Most scholars interpret this as authorizing executive orders in practice. For an order to be valid, it must be related to one of the president’s constitutional duties. Past presidents have issued executive orders concerning everything from information confidentiality to war to labor relations to the abolition of slavery.

Learning The Limits

Although the ability to issue executive orders gives the president tremendous power, there are limits on the long-term effectiveness of this method. Notably, a current president can reverse past presidents’ executive orders as easily as the predecessor issued them. Barack Obama, for example, did not need any input from Congress to reverse George W. Bush’s order limiting public access to presidential papers. Presidents thus prefer to enact their agenda by legislation, as laws passed by Congress cannot be so easily reversed.

Congress itself provides a significant limit on the president’s executive powers. Although the body cannot reverse executive orders on its own, it can refuse to fund them, making any order that requires significant spending defunct. The president, however, can veto a Congressional bill that refuses to fund an order, so Congress can only challenge the president in this way if a veto-proof majority agrees to do so.

Finally, the Supreme Court may rule executive orders unconstitutional, especially if they exceed the president’s powers or contradict previous laws. In 1952, President Truman attempted to nationalize all of the steel mills in the United States by executive order. The Supreme Court struck this order down, arguing that it went beyond the president’s power to enforce and clarify laws, and the mills remained in private hands.

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