Understanding Executive Orders

Executive orders serve as a quick way for incoming presidents to implement policy changes, especially during the initial transition. Both outgoing and incoming administrations may utilize executive orders near Inauguration Day to establish or modify policies. This practice is common when the incoming and outgoing presidents belong to different political parties.

While executive orders allow presidents to act unilaterally without awaiting legislative approval, their scope is limited by constitutional constraints. Additionally, executive orders can be easily amended or revoked by succeeding presidents, making them less durable than legislatively enacted policies.

Many of the executive orders the current Administration has issued to date, however, differ significantly in their scope, breadth, and impact, while pushing the limits of what is legally permissible. This is why federal judges have intervened to pause implementation of several that have unclear legal authority and justification.

Process for Issuing Executive Orders

The typical process for issuing an executive order involves several steps:

A draft of the order is prepared and submitted to the Office of Management and Budget (OMB).
The OMB reviews the draft and, upon approval, forwards it to the Attorney General for legal assessment.
After the Attorney General's approval, the Director of the Federal Register reviews the order.
The President signs the order.
The signed order is published in the Federal Register, at which point it takes effect.

Limitations of Executive Orders

While executive orders allow the President to direct federal agencies, establish administrative structures, create committees or task forces, activate emergency powers, and address military operations and foreign affairs, they cannot:

Alter the Constitution.
Direct federal spending without congressional approval.
Bypass the legislative process.
Overturn Supreme Court rulings.
Nullify existing legislation.
Change the balance of power between Congress and the Judiciary.

Judicial Review

Courts have the authority to review executive orders to determine:

Whether the President has the constitutional or congressionally delegated power to issue the order.
If the order exceeds the scope of the delegated authority.
The underlying scope and impact of the order.

Challenges to executive orders can be based on statutory grounds, constitutional grounds, or the "reasonableness review" derived from the Due Process Clause. A court can determine that an executive order is unlawful.

Congressional Action

Congress can limit executive action by:

Repealing or modifying an executive order issued under congressional delegation through new legislation, though this is uncommon due to the President's veto power.
Codifying a previously issued order into law, preventing future presidents from revoking it.
Using its appropriations authority to limit or deny federal funding.
Imposing regulations, such as the National Emergencies Act, to roll back presidential power.