Among the most powerful tools available to the president are executive orders, which are written policy directives issued by the president with much of the same power as federal law. However, such orders are not explicitly defined in the Constitution and rest on historical practice, executive interpretations, and court decisions.
In recent days, President Donald Trump has issued a series of executive orders, some of which have already been challenged in court. An executive order restricting birthright citizenship has been temporarily blocked by a federal court judge, and another lawsuit is imminent about an order banning transgender troops from serving in the military.
The constitutional basis for the executive orders power is the president’s broad ability to issue directives. According to the Congressional Research Service, “although the U.S. Constitution does not address executive orders and no statute grants the President the general power to issue them, authority to issue such orders is accepted as an inherent aspect of presidential power.”
The President’s Power to Issue Executive Orders
The president has two primary sources of power to issue directives and executive orders: the Constitution and powers granted to the president by Congress. This was stated in the Youngstown Sheet and Tube Co. v. Sawyer (1952) Supreme Court decision by Justice Hugo Black: “The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.”
Article II, Section 1 of the Constitution vests executive powers in the president, requiring that the president “shall take Care that the Laws be faithfully executed.” The president is also the “Commander in Chief of the Army and Navy of the United States,” as stated in Article II, Section 2. The president is further understood to have broad powers in areas such as control and operation of the federal government, federal agencies, and in foreign affairs. For instance, in Youngstown, Justice Felix Frankfurter’s concurring opinion made it clear that under the Constitution, the president has the “vast share of responsibility for the conduct of our foreign relations.”
Congress can also grant additional powers to the president by statute, including the use of executive orders to achieve goals. For example, under 8 U.S.C. § 1182, Aliens and Nationality, Congress has granted the power to the president “to suspend the entry of all aliens or any class of aliens” if the president “finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States.” Congress also can approve an executive order after it is issued by the president by including its text in a statute.
Setting the Limits of Executive Orders
While an executive order can have the same effect as a federal law under certain circumstances, according to the 2021 CRS report, Congress can pass a new law to override an executive order, but only for those orders enacted “pursuant to powers delegated to the President” by Congress. Conversely, Congress cannot directly modify or revoke an executive order that was issued pursuant to powers granted exclusively to the president by the Constitution. Congress, however, has used several other methods to restrain executive orders; for example, by attempting to withhold spending on programs created by an executive order.
In other instances, the courts have weighed in to decide cases where presidential executive orders are challenged. In the landmark Youngstown case, the Supreme Court struck down an executive order issued by President Harry Truman in 1952 attempting to seize control of the steel mills during a labor dispute in the midst of the Korean War. The Court ruled that the executive order placing steel mills under federal control was invalid, as despite his wartime powers, the president did not have the express or implied power to seize private property amid a labor dispute, nor had been granted such power by law. “The President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker,” Justice Black wrote in his majority opinion.
Justice Robert Jackson’s concurring opinion stated a three-part test for analyzing conflicts between presidential and congressional powers that has been used to define the limits of a president’s power to issue executive orders. Jackson said the president’s powers are at their height when he has the direct or implied authorization from Congress to act; at their middle ground—the “Zone of Twilight,” as he put it, when both Congress and the president may have “concurrent authority”; and at their “lowest ebb” when a president acts against the expressed wishes of Congress.
A recent application of the Youngstown framework came in San Francisco v. Trump, a 2018 Ninth Circuit Court of Appeals decision. President Donald Trump issued an executive order withholding federal funds from “sanctuary cities” that did not share immigration and citizenship status information with federal authorities. Citing Justice Jackson’s test in Youngstown, the panel majority found that “because Congress has the exclusive power to spend and has not delegated authority to the Executive to condition new grants on compliance with §1373, the President’s ‘power is at its lowest ebb.’” The case was appealed to the Supreme Court but vacated after Joe Biden became president.
In other cases, although presidential power might have been at its “lowest ebb,” the Court has still upheld the president’s prerogative to act, even against congressional legislation, such as in the Zivotofsky v. Kerry (2015) case, which upheld the president’s sole power to recognize foreign nations, despite a federal law passed to the contrary.
In other cases, the courts have upheld executive orders and proclamations when it is determined the president had been granted some powers by Congress to issue a directive. In Trump v. Hawaii (2018), the Supreme Court upheld an executive proclamation blocking the entry of certain foreign nationals into the United States under the Immigration and Nationality Act (INA). The court found the proclamation was consistent with “the broad statutory text [of the INA] and the deference traditionally accorded the President in this sphere.”
Finally, presidents have the power to modify or revoke not only an executive order issued during their term of office but also orders issued by past presidents that have not been revoked, since executive orders generally do not have expiration dates.
Scott Bomboy is the editor in chief of the National Constitution Center.
