Executive orders are a power of the US president to make laws or determine how existing laws should be carried out. They can cover internal affairs, but not those that impinge on Congressional powers. They can be overturned by Congress with a two-thirds vote, and their constitutionality can be assessed by the Supreme Court. While controversial, they have been used since the first US president took office.
An executive order is a specific power of the president and the executive branch as provided for in the United States Constitution in Article II, Section 1. This power allows the President of the United States (POTUS) the authority to make laws or determine how laws existing should be carried out. He’s always dealing with internal affairs; executive agreements regulate foreign affairs. Virtually any matter in internal affairs is fair game for such an order, except for those things that would impinge on Congressional powers, such as regulating interstate commerce. Executive orders can be things as simple as declaring a new national holiday or a day designated for a special event, such as “Take your child to work.” Since the presidency of Bill Clinton, these non-controversial orders have been given a new name: Presidential Decision Directives.
Not all executive orders are simple or ceremonial, and some bring the president into direct conflict with Congress. Some famous examples from the past include President Eisenhower’s order to enforce desegregation of schools. Sometimes, states – or Congress is – are unwilling to enforce a law that is controversial, and in these circumstances, the president moves by executive order to see the law enforced. John F. Kennedy used these orders similar to Eisenhower’s, to attempt to abolish race-based discrimination for people seeking employment, housing, or equal pay.
While the power of such an order seems vast, there are checks. A check is the ability of Congress to overturn them, in much the same way it can overturn a presidential veto. A two-thirds vote of both houses (the Senate and the House of Representatives) is required to overturn an executive order. That means they can be extremely difficult to overthrow, since most congressmen typically vote along party lines.
Another brake on the broad power of the executive order is the Constitution. That is, the Supreme Court can review the ordinance and assess its constitutionality. In essence, both the legislative and judicial branches of government have the potential power to review or reject a directive, but their ability to do so may be based on the degree to which the party affiliation of Congress or the courts aligns with the president. .
While the use of this power has been around since the first US president took office, it remains controversial. It potentially gives the POTUS the opportunity to act very autocratic, and the checks and balances on power through the legislative and judicial branches are only effective if those branches aren’t filled with supporters of the president. It also gives the people of the United States little recourse if they are dissatisfied with an order, since they have no vote or say on which orders the POTUS can pass. The only recourse given to the people is to lobby their representatives in Congress to support the defeat of an order and to ensure that they vote for a different presidential candidate in the next election.
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