The administration has issued a number of sweeping executive orders in the last ten days which have left many feeling justifiably frightened and confused. The executive orders have regarded topics including immigration enforcement, “DEI”, transgender medical care and rights, and Birthright Citizenship, among others. Many of these executive orders contain directives which are legally ambiguous, potentially unconstitutional, and far reaching, prompting legal challenges from state governments and other organizations.
I have encountered a lot of confusion regarding the scope and authority of executive orders, and my aim here is to provide some clarity. Given that many of these executive orders target socially marginalized communities, I would hope to also provide some reassurance that the American system of rights and limited government will prevent abuses of presidential authority. However, American history is replete with instances of executive overreach, and the administration’s executive orders will test the resolve of our public institutions and political system.
What is an “executive order”?
The US Constitution does not explicitly state that presidents may issue executive orders. However, it has been accepted for generations that Article II of the US Constitution empowers the president to issue directives which govern the internal workings of federal executive branch departments. Thus, an executive order can be understood as a written command to executive branch departments to enforce existing law in a certain way. Hence, although executive orders have the force of law, executive orders are not “new” laws; only Congress has the authority to pass laws. In short, executive orders must be based on authority outlined in the Constitution or Congressional legislation.
For example, it is important to understand that racial discrimination and racial quota systems are already illegal according to federal Civil Rights law, thus the administration’s executive order aimed at preventing “illegal DEI” does not ban DEI or establish any new law preventing private organizations and state governments from engaging in diversity, equity, and inclusion programs as they see fit.
In fact, executive orders never apply to state and local governments, and never extend to the private sector, no matter what a president claims otherwise. Furthermore, executive orders are subject to review by courts and may be overturned if found in conflict with the Constitution. They may also be revoked by a new administration and in some cases, Congress may override an executive order through legislation.
However, there is nothing stopping a president from issuing an executive order which might violate the US Constitution. It is the job of courts to determine if a violation has occurred. The current administration is hardly alone in issuing executive orders which are Constitutionally ambiguous; sitting presidents have often tested the limits of their authority by issuing executive orders which are Constitutionally questionable.
Executive orders are most often found in violation of the Constitution when they violate the principles of Separation of Powers and Federalism, that is, when they overtake the authority of Congress, the Judiciary, or state government. Separation of Powers and Federalism are fundamental aspects of our political system; the Federal government and state government have distinct and parallel authority, and each branch of the federal government has distinct authority and the power to check the actions of the other branches. This design exists to help prevent the takeover of the country by a dictatorship and has proven remarkably effective in this regard.
Many of the current administration’s executive orders will be challenged as violating Separation of Powers, Federalism, and our Constitutional rights. For example, an executive order may direct the Federal government to step up deportations of undocumented residents, but the Federal government cannot “commandeer” state and local law enforcement authorities to help. That would be a clear violation of the Constitution, which states that immigration law is solely a Federal—and not a state—responsibility. Nor can executive orders dictate what medical care we seek—we have a protected right of privacy between ourselves and our doctors which has been recognized for decades. Lastly, an executive order cannot regulate private workplaces, for example, by forcing private companies to abandon their commitments to diversity, equity, and inclusion.
However, the American public isn’t always clear on the scope and authority of executive orders. The danger is that this confusion could leave many people accepting unconstitutional executive orders as legitimate law and thereby neglecting to pressure their elected representatives to challenge presidential overreach.
Indeed, nothing stops a president from attempting to expand their powers via executive orders. And nothing stops the American people from reminding a president that their authority is limited by the Constitution, our democratic principles, and our resolve to protect each other from abuses of executive authority.
If you want to take action in response to the administration’s executive orders, here are some resources: