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Executive Orders: What Is the Scope of Executive Authority?

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By: Justin Keeton
Member, American Journal of Trial Advocacy

What are Executive Orders?

            Under Article II of the United States Constitution, the President is vested with a wide but vague set of prerogatives that falls under the umbrella of executive power.[1]  While there is no specific provision in the Constitution that permits this authority, there is a grant of executive power along with the title of Commander in Chief.[2]  The legal authority for executive orders also derives from the Take Care Clause of Article II of the Constitution, which grants the President broad authority by stating the President “shall take care that the laws be faithfully executed.”[3]  Under this constitutional umbrella, the President is allowed to execute his or her orders to the United States Government and the American people.  Within these orders, Presidents typically provide instructions to federal agencies to oversee how they should discharge their responsibilities and how to enforce and implement federal law.[4]  Executive orders are published and go into effect as soon as they are published in the Federal Register,[5] which is “the daily journal of the Federal government.”[6]   

History of Executive Orders

The use of executive orders to implement presidential policy is not new, although their form, substance, and impact have varied dramatically throughout history.  Throughout American history, Presidents have utilized executive actions to tackle a wide range of issues.  Every President since George Washington with the exception of William Henry Harrison, who died after one month in office, have signed executive orders into effect.[7]  President George Washington issued eight executive orders in his time in office, while President Franklin D. Roosevelt penned over 3,700 during his 12-year term, the most orders of any President.[8]  These orders have ranged from the mundane to the meaningful and have touched nearly every area of our society throughout our history.  The first executive order was issued on June 8, 1789, when President Washington directed the heads of executive departments to submit reports to him about the “full, precise, and distinct general idea of the affairs of the United States.”[9]  In such turbulent times after the Revolution, President Washington was trying to single-handedly maintain a fragile centralized federal government in a nation full of people who had just rebelled against a central authority.  

As time progressed, Presidents began to use their executive powers in ways that were more meaningful and lasting.  During the American Civil War, President Abraham Lincoln controversially used executive authority to suspend habeas corpus in 1861.[10]  Then in 1863, President Lincoln’s Emancipation Proclamation was declared which started the process to end slavery.[11]  As the Second World War engulfed the world, case law began to track some of the nation’s most contentious social and political issues.  A notable example of this occurred in 1942 when President Roosevelt issued an executive order authorizing the internment of Japanese Americans for what he believed to be national security reasons.[12]  In 1948, President Harry S. Truman used his executive authority to order the racial integration of the American armed forces which led to desegregation.[13]  Perhaps the most famous instance of an executive order is the Supreme Court’s 1952 decision to strike down President Truman’s executive order directing the secretary of commerce to seize control of the nation’s steel mills during the Korean War.[14]  Finally, in 1957, President Dwight D. Eisenhower used an executive order to send federal troops to integrate public schools in Little Rock, Arkansas, thus, ushering desegregation into effect.[15]  These examples are just some of the many executive orders that continue to have an impact on our country as a whole. 

Limitations on Executive Orders

Even though the President has broad powers to affect policymaking decisions, most executive orders stem from a desire to bypass Congress.  To combat this desire, the Constitution’s framers ensured a President’s powers are restrained and limited by placing checks and balances in the legislature and the judiciary.  When a President’s authority comes from power granted by statute, Congress has the power to negate or modify that authority, or Congress can pass legislation to cut funding for the orders implementation and appropriate funds elsewhere.[16]  Presidents cannot grant themselves authority they do not have; therefore, they cannot create new law, rescind existing law, or appropriate funds from the United States Treasury through the use of an executive order.[17]  Only Congress has that authority, which serves as a check on the President.  Still, the President must sign any law into effect that attempts to limit or remove his authority, so the check given to Congress is limited in scope and impact.[18]  The only solution under this situation is for Congress to override his veto.[19]   

Both Congress and federal courts may restrain or limit this authority; however, the courts have a greater check on executive overreach.  Today, as in the past, courts frequently review and halt executive orders that exceed their constitutional limits, thus, curbing the broad power of the President.  Courts use this power to strike down executive orders that exceed the scope of the President’s authority through judicial review.[20]  As discussed above, one of the best examples of this check of authority occurred in 1952 when the Supreme Court overturned President Truman’s executive order calling for the direct seizure of most of the nation’s steel mills during the Korean War.[21]  The Court held that President Truman’s executive order was an ultra vires action in the absence of any constitutional or statutory provision that expressly authorized the seizure of the steel mills.[22]  In a concurring opinion, Justice Robert Jackson laid out a three-part test to determine presidential power that has been used in arguments for an executive’s overreach of power.[23]  In determining whether presidential overreach has occurred, Justice Jackson proposed three categories:

  1. where the President has acted with express or implied authorization from Congress;
  2. where the President has acted solely on the independent powers of the executive, which courts describe as the “zone of twilight;” and
  3. where the President has acted against the express or implied wishes of Congress.[24]

In the first category where the President acts according to an express or implied authorization from Congress, the order enjoys a strong presumption of validity, and it is virtually always upheld.[25]  With every executive order the President signs into effect, he must identify the executive or statutory authority he is relying on for the order to be upheld.[26]  On the other hand, the presidential authority under the second category is less certain.  In the “zone of twilight,” the President acts in the absence of a congressional grant or denial of authority and is relying solely on the independent powers of the executive which are limited under the Constitution.[27]  If this occurs, both the President and Congress “may have concurrent authority” in which a court must decide the extent of each one’s authority.[28]  Although federal courts sometimes have difficulty in determining whose authority is controlling in a given situation, the Supreme Court has implied, in the context of a “zone of twilight” case, that ex-post congressional approval may prove easier to achieve “in the areas of foreign policy and national security.”[29]  National security is indeed an area in which courts have long granted the President comparably greater latitude given his title as Commander in Chief.[30]  

In the third category where a President acts against the expressed or implied will of Congress, the executive order must be based only upon his constitutional powers because he cannot rely on any authority delegated to him from Congress.[31]  The Supreme Court has described this situation as the point a President’s “power is at its lowest ebb” compared to the other two categories.[32]  In this situation, federal courts must scrutinize and be cautious of a President’s conclusive assertion of authority to ensure constitutional checks and balances are in place.[33]  This is the category which the cases that invalidate executive orders most often fall. 

Why Should Lawyers Understand Executive Authority?

As discussed above, executive orders can touch nearly every area of our society, thus, potentially affecting the rights of large portions of the American people.  Through judicial review, federal courts can help protect the interests of these people once a lawsuit is filed to challenge its constitutionality.  Likewise, federal courts review executive orders because some plaintiffs desire to try to enforce rights created by an executive order.  No matter the reason for the lawsuit, a lawyer must understand the scope of executive power to better serve the interests of his or her client whether it be an individual, business, or other entity.  Such understanding enables the courts to serve as a check on the President’s authority and equips lawyers with the ability to fight for a client’s rights.  Whatever the reason, lawyers should understand this authority to better represent and advocate for the rights of their clients. 

[1] U.S. Const. art. II, § 1.

[2] U.S. Const. art. II, § 2.

[3] U.S. Const. art. II, § 3.

[4] The Executive Branch, White House, (last visited Sept. 13, 2019).

[5] Executive Orders, Office of the Federal Register, (last visited Sept. 13, 2019).

[6] About the Federal Register, Nat’l Archives, (last visited Oct. 4, 2019).

[7] Executive Order, History, (last updated Aug. 21, 2018).

[8] Id.

[9] Harold C. Relyea, Presidential Directives: Background and Overview, Cong. Res. Serv. (Nov. 26, 2008), (emphasis omitted).

[10] James A. Dueholm, Lincoln’s Suspension of the Writ of Habeas Corpus: An Historical and Constitutional Analysis, J. of the Abraham Lincoln Ass’n, Summer 2008, at 47-66; Ex parte Milligan, 71 U.S. 2, 115 (1866).

[11] The Emancipation Proclamation, Nat’l Archives, (last visited Sept. 13, 2019).

[12] Exec. Order No. 9066, 7 Fed. Reg. 1407 (Feb. 19, 1942); see e.g., Ex parte Endo, 323 U.S. 283, 285-87 (1944) (discussing the evacuation of an Asian American pursuant to President Roosevelt’s executive order).

[13] Exec. Order No. 9981, 3 Fed. Reg. 4313 (July 26, 1948).

[14] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 588-89 (1952).

[15] Exec. Order No. 10730, 22 Fed. Reg. 7628, (Sept. 24, 1957).                  

[16] Executive Orders, Heritage Foundation, (last visited Sept. 13, 2019).

[17] Youngstown, 343 U.S. at 587 (“In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”).

[18] U.S. Const. art. I, § 7, cl. 2.

[19] U.S. Const. art. I, § 7, cl. 3.

[20] Dalton v. Specter, 511 U.S. 462, 469 (1994) (internal quotations omitted) (quoting Franklin v. Massachusetts, 505 U.S. 788, 801 (1992)) (“[The] President’s actions may still be reviewed for constitutionality.”).

[21] Youngstown, 343 U.S. at 588-89.  

[22] Id.   

[23] Id. at 635-638 (Jackson, J., concurring).

[24] Id. (Jackson, J., concurring).

[25] See id. at 635 (Jackson, J., concurring) (“When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”); id. at 637 (Jackson, J., concurring) (“A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.”).

[26] Executive Order, History, (last visited Sept. 13, 2019).

[27] Youngstown, 343 U.S. at 637 (Jackson, J., concurring).

[28] Id. (Jackson, J., concurring).

[29] Dames & Moore v. Regan, 453 U.S. 654, 678 (1981) (quoting Haig v. Agee, 453 U.S. 280, 291 (1981)) (“Such failure of Congress specifically to delegate authority does not, ‘especially . . . in the areas of foreign policy and national security,’ imply ‘congressional disapproval’ of action taken by the Executive.”).

[30] See, e.g., Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988) (“The authority to protect such [national security] information falls on the President as head of the Executive Branch and as Commander in Chief.”).

[31] Youngstown, 343 U.S. at 637-38 (Jackson, J., concurring).

[32] Id. at 637 (Jackson, J., concurring).

[33] Id. at 638 (Jackson, J., concurring).

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