What the Heck Is An “Executive Order”? — Everything You Need To Know…But Were Afraid to Ask
Since his inauguration in late January, President Donald Trump has already signed seven Executive Orders, including an initiative to prevent refugees from entering the country and one to build a wall between the United States and Mexico. Whether or not you support Trump’s actions, it’s important to know exactly how much power his Executive Orders actually have.
A lot of Americans aren’t even sure what an “Executive Order” really is. The general public often seems to think that Executive Orders are a way for the U.S. President to make laws without them going through Congress — at least, that’s what I thought before looking into this issue more closely. As it turns out, an Executive Order actually only applies to a pretty narrow group of people, and does NOT have the same legal power as a law.
So before you talk with your neighbors — or your constituents — about the details of Trump’s new policies, here are a few surprising things you should know about Executive Orders.
1. Executive Orders Are NOT Mentioned In the Constitution
When the writers of the Constitution were granting powers to people in each of the branches of the government, they didn’t mention the President’s ability to create an Executive Order. Rather, Presidents like to argue that Executive Orders are an implied power, given to them by the Constitution. They cite a few parts of Article II of the Constitution to make their claim:
- Section 1, which states:
“The executive Power shall be vested in a President of the United States of America,”
- Section 2, which states:
“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices…”
- And/or Section 3, which states:
“He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient […]” And: “He shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”
These powers — even though they don’t mention Executive Orders — give the President the ability to control members of the Executive Department of the Federal government, to control the military, to REQUEST Congress to pass certain laws, and to assist in the enforcement of laws that Congress has already passed. However, these powers do NOT give the President the ability to create his own laws.
2. So Executive Orders are NOT Laws — Only Congress Can Create Laws
While the Constitution does grant the President “Executive Power,” it does not grant the President the ability to create his own laws out of thin air.
While one could argue that the President does have the power make small adjustments to existing laws if it makes the laws more enforceable, an Executive Order that creates an entirely new law, or contradicts laws created by Congress, is a clear breach of power. Again: only Congress can create laws, according to Article I, Section 1 of the Constitution. WhiteHouse.gov puts it this way:
“All legislative power in the government is vested in Congress, meaning that it is the only part of the government that can make new laws or change existing laws. Executive Branch agencies issue regulations with the full force of law, but these are only under the authority of laws enacted by Congress.”
Shall we say it again? In America, no one can pass laws except Congress.
3. Executive Orders Have No Power to Bind Regular Citizens — Who Don’t Work For the Executive Departments of the Federal Government
Since Executive Orders are not laws, they do not legally bind regular American citizens — they only hold power over members of the President’s Cabinet. They cannot be used to control anyone who is not a member of the Executive Department of the Federal Government. That means that if you’re the Governor of a “Sanctuary City,” or a city that has laws that protect Immigrants, you can, for example, ignore Trump’s Executive Order “Enhancing Public Safety in the Interior of the United States,” — and resume business as you normally would; his Executive Orders hold no control over you, or the citizens of your city who don’t work for the Executive Departments of the Federal Government — or even over local immigration officers.
4. Congress’ Laws Overrule Executive Orders
Since the President only has the power to help enforce laws that Congress has already passed, Executive Orders are nullified when or if they contradict the laws passed by Congress. That means that the President can’t create an Executive Order that goes against existing laws, and that Congress can easily get rid of Executive Orders.
All Congress has to do to get rid of an Executive Order is pass a law that contradicts that order. While the President may veto that law, Congress can overrule his veto if at least two-thirds of its members vote against the veto.
Even laws that were passed beforehand that contradict a new Executive Order effectively nullify the President’s Executive Order, and the President can’t veto laws that already exist.
5. Every Single U.S. President Has Used Executive Orders
Even though Executive Orders aren’t mentioned in the U.S. Constitution, they have become a tradition. Every single U.S. President has taken part in using them.
President George Washington signed the first ever Executive Order just three months after he was chosen to be President, in 1798, according to The Washington Times. His Executive Order merely required the heads of the various Executive Departments — members of his Cabinet — to give him a general overview of what was happening within each of their areas of management.
Is this tradition — of using Executive Orders — one that should continue into the future? Or has it turned into something that the Founding Fathers didn’t intend? Do you think it is useful to know that Executive Orders “order” such a limited range of people? Let us know your thoughts in the comments bellow! And share this article throughout your social networks to help educate and empower your neighbors — of every political persuasion.
