The Scope of an Executive Order

Given the breadth and depth of the President’s directives issued as EOs, it is useful to understand what EOs can and cannot do. The following information may help you in conversations with your own colleagues, staff, or community.

What an Executive Order Cannot Do:

  1. Create New Laws: EOs cannot create new laws; they can only direct the enforcement of existing laws or manage federal operations within the scope of the President's authority.
  2. Override Existing Laws: EOs cannot override existing laws passed by Congress. If an EO conflicts with federal law, the law takes precedence.
  3. Allocate Funds: The President cannot use EOs to allocate funds that have not been appropriated by Congress.
  4. Violate the Constitution: EOs must be rooted in the Constitution or statutory authority. They are subject to judicial review and can be overturned if deemed unconstitutional.

What an Executive Order Can Do:

  1. Direct Federal Agencies: The President can instruct federal agencies on how to implement and enforce laws. For example, an EO can direct agencies to prioritize certain regulations or policies.
  2. Manage Federal Operations: EOs can be used to manage the operations of the federal government, such as establishing new administrative policies or procedures.
  3. Address Emergencies: The President can use EOs to respond to emergencies, such as natural disasters or national security threats.
  4. Implement Policy Changes: EOs can be used to implement significant policy changes, especially when immediate action is required and waiting for Congress is not feasible.

Limits on Executive Power

Both Congress and especially the courts can act as a check on presidential power. This has already played out in the early days of this administration with federal courts blocking executive actions related to birthright citizenship and broad freezing of federal funds across various agencies. Yet, even with constraints, these executive actions are still causing a great deal of upheaval, confusion, fear, and uncertainty.