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What is an Executive Order?

Tricia Christensen
Updated May 17, 2024
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An executive order is a specific power of the president and the executive branch as provided by the US Constitution in Article II, Section 1. This power allows the president of the United States (POTUS) the authority to create laws or determine how existing laws should be carried out. It always has to do with domestic affairs; executive agreements govern foreign affairs. Pretty much any issue in domestic affairs is fair game for such an order, except for those things that would impinge upon congressional powers, like the regulation of interstate commerce. Executive orders can be simple things like declaring a new National Holiday or a day designated to a special event, like “Take your Child to Work Day.” Since Bill Clinton’s presidency, these noncontroversial orders have been given a new name: Presidential Decision Directives.

Not all executive orders are simple or ceremonial, and some put the president in direct conflict with Congress. Some famous examples of the past include President Eisenhower’s order to enforce the desegregation of schools. Sometimes, states are — or Congress is — unwilling to enforce a law that is controversial, and under these circumstances, the president moves by executive order to see the law enforced. John F. Kennedy used these orders in a manner similar to Eisenhower, to attempt to abolish discrimination based on race for people who sought jobs, housing, or equal pay.

While the power of such an order seems broad, there are checks to it. One check is Congress's ability to overturn them, much in the same way that it can overturn a presidential veto. A two-thirds vote of both houses (the Senate and the House of Representatives) is required to overturn an executive order. This means that they can be extremely hard to overturn, since most members of Congress typically vote along party lines.

Another check to the broad power of the executive order is the Constitution. That is, the Supreme Court may review the order and weigh its constitutionality. Essentially, both the legislative and judicial branches of the government have the potential power to check or dismiss a directive, but their ability to do this may be based on the degree to which party affiliation of Congress or the courts aligns with the president.

Though use of this power has existed since the first president of the US took office, it remains a controversial one. It potentially gives the POTUS an opportunity to act in a very autocratic fashion, and checks and balances to the power through the legislative and judicial branches are only effective if these branches aren’t stacked with supporters of the president. It also gives the people of the US little recourse if they are unhappy with an order, since they have no vote or say on which orders the POTUS can pass. The only recourse given to the people is to lobby their representatives in Congress to support defeating an order and to make certain they vote for a different presidential candidate in the next election.

America Explained is dedicated to providing accurate and trustworthy information. We carefully select reputable sources and employ a rigorous fact-checking process to maintain the highest standards. To learn more about our commitment to accuracy, read our editorial process.
Tricia Christensen
By Tricia Christensen
With a Literature degree from Sonoma State University and years of experience as a America Explained contributor, Tricia Christensen is based in Northern California and brings a wealth of knowledge and passion to her writing. Her wide-ranging interests include reading, writing, medicine, art, film, history, politics, ethics, and religion, all of which she incorporates into her informative articles. Tricia is currently working on her first novel.
Discussion Comments
By anon978735 — On Nov 20, 2014

It does not allow the POTUS to create laws. Never happened. Until now with President Hussein.

By RobertLaity — On Jan 31, 2014

See: Laity v NY, U.S. Supreme Court Docket No. 13-875 seeking the removal of Barack Obama from office on the grounds that he has usurped the Presidency during time of war and that he is a spy. It also seeks the invalidation of the 2008 and 2012 New York state presidential ballots on the same grounds.

By RobertLaity — On Jan 31, 2014

Obama should not be signing any Executive Orders. Obama is a usurper and a fraud.

By anon314584 — On Jan 18, 2013

The truth is an authority granted towards itself. To have authority and not be false, one must walk a thin line with the truth. To do this in our American society and government, we must first not infringe the bill of rights granted to the people then the states.

Second, we must use the checks and balances of the government to make sure that one does not overextend his own power and pull the power from the people and towards one individual.

The people get their say by electing an individual who votes according to his constituency. By making terms limited, we are limiting the damage that can be done to individual freedoms. Executive orders are not the last law or the law of the land until Congress agrees to let it go. However, if it gets to go before the courts it can be ruled unconstitutional and several orders have been. States have the right to not implement any executive order. Now if something was an amendment, then it would be the law of the land. There is a difference.

By anon314578 — On Jan 18, 2013

Executive orders can be shot down and they cannot conflict with the Bill of Rights (which are the first ten amendments.) This was the people's protection from an unjust government.

Executive orders have been deemed unconstitutional and some have been shot down. Youngstown Sheet and Tube v. Sawyer 343 U.S. 579 (1952)

The Court declared Harry Truman's 1952 Executive Order No. 10340 unconstitutional. The order had asserted the president's Commander-in-Chief power

to authorize the government seizure and operation of the steel mills in order to prevent a work stoppage during wartime.Train v. City of New York 420 U.S. 35 (1975)

The Court ruled that the president, as Chief Executive, did not have the authority to impound funds appropriated by Congress, unless he is expressly granted that authority in the appropriating legislation.

The best example is here Clinton v. City of New York 524 U.S. 417 (1998). The Court declared the Line Item Veto Act, and therefore the president's short-lived line item veto power, unconstitutional as a violation of the "Presentment" clause of Article I of the Constitution, stating that it violated the Bill of Rights.

By anon314248 — On Jan 17, 2013

By what authority does the President have the capacity to "write" an Executive Order? What provisions in law allow this? What lawful or Constitutional directive gives the president this authority? And since when?

By anon312965 — On Jan 09, 2013

The so-called “supremacy clause” of the Constitution, found in Article 6, states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

The key, of course, is the phrase saying, all laws made in pursuance of the Constitution, or those clearly enumerated in the document, were supreme, State laws notwithstanding. In other words, the federal government was supreme in all items clearly listed in the document.

By anon258414 — On Apr 01, 2012

I remember hearing somewhere that once an executive order is written, it is logged into the federal register, and from that point there is a window of 30 days for a complaint to be filed against it from someone in Congress. If there is no complaint filed, "then" after the 30 days has passed, it then becomes law or in effect. If someone has more knowledge of this, please add to this.

I'd like to know why more Congressmen don't take advantage of this to put a halt on some obnoxious, unconstitutional executive orders.

By anon161691 — On Mar 21, 2011

Executive orders do not "always have to do with domestic affairs". G.W. Bush, for instance, signed an executive order forbidding overseas aid going to organizations that permitted or encouraged abortions in other countries, such as in Africa or South America.

Therefore, the effect of this was felt overseas, although arguably it was done to placate/pander to the Christian Right.

By anon139645 — On Jan 05, 2011

regarding the Supremacy Clause, The clause in United States Constitution's Article VI, stating that all laws made furthering the Constitution and all treaties made under the authority of the United States are the supreme law of the land.

Chief Justice John Marshall interpreted the clause to mean that the states may not interfere with the functioning of the federal government and that federal law prevails over an "inconsistent" state law.

By anon130785 — On Nov 29, 2010

Your information is incorrect. An executive order is not law. Congress only makes laws. Executive Orders (EOs) are legally binding orders given by the President, acting as the head of the Executive Branch, to Federal Administrative Agencies.

Executive Orders are generally used to direct federal agencies and officials in their execution of congressionally established laws or policies. However, in many instances they have been used to guide agencies in directions contrary to congressional intent. The EPA was established by a Congressional Order. This is illegal by the Constitution but until a challenge is put forth to the Supreme court, it stays intact.

By anon81838 — On May 03, 2010

Look up the supremacy clause; the states are bound by federal law. States can't pick and choose which federal laws to abide by.

Take a constitutional law class before you start to make stuff up. then at least you'd be able to sound a little authoritative.

By anon61325 — On Jan 19, 2010

I believe another alternative available to the people is the 10th Amendment which allows the states to nullify any law that the states deem to be unconstitutional--the Supreme Court law notwithstanding.

The intent of the Constitution was for the states to be another method to keep the general power in it's place. It is up to the people to have the state representatives reclaim the "right" that have been "silently" ceded to a centralist government.

By anon17263 — On Aug 26, 2008

what is a legislative order?

Tricia Christensen
Tricia Christensen
With a Literature degree from Sonoma State University and years of experience as a America Explained contributor, Tricia...
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