With specific focus on Executive Orders as a tool for the discussion and given the suggestion that President Trump has introduced a raft of executive orders

How to use this information:

Executive orders boost the President’s power

Limits placed on Executive Orders constraining the President’s power

***It is always important to use information in revision, not just read it/listen to it/watch it***

What powers does the President have?

The President, under the United States Constitution, has a raft of ‘Enumerated Powers’. These, under Article 2, clearly outline the role of the President

• Has the power to approve or veto bills and resolutions passed by Congress
• Through the Treasury Department, has the power to write checks pursuant to appropriation laws.
• Pursuant to the Oath of Office, will preserve, protect, and defend the Constitution of the United States.
• Serves as Commander-in-Chief of the United States military, and militia when called to service.
• Has the power to grant reprieves and pardons for offenses against the United States, except in the cases of impeachment.
• Has the power to make treaties, with the advise and consent of Congress.

​

• Has the power to nominate ambassadors and other officials with the advise and consent of Congress.
• Has the power to fill vacancies that happen when the Senate is in recess that will expire at the end of the Senate's next session.
• Shall periodically advise Congress on the state of the union and give Congress recommendations that are thought necessary and expedient.
• Has the power to convene one or both houses of Congress during extraordinary occasions, and when Congress cannot agree to adjourn has the power to adjourn them when he thinks the time is proper.
• Has the duty to receive ambassadors and other public ministers.
• Has the duty to see that the laws are faithfully executed.

An additional function, commonly perceived power, or the President is their ability to issue Executive Orders

• The perception of Executive Orders among some commentators and the public is that these can give the President unlimited powers.
• There is some good basis for this. President Franklin D Roosevelt issued a total of 3552 across his 12 year Presidency. Averaging 307 per year- more than any President since they began numbering them in 1900. Many of these were passed as part of FDR’s attempt to direct the war effort. Some monumental achievements have happened under Executive Orders, for example FDR prohibited discriminatory hiring practices in the US defence industry in 1941 under Executive Order 8802 – hailed as a landmark move towards Civil Rights in America.
• More recently Trump’s widely publicised use of Executive Orders soon after coming to office saw him issue 83 in his first 50 days of office

What Executive Orders?

These are a source of the President’s Direct Authority. It is an extra-constitutional power and so fall outside of the enumerated powers of the President. The main features of Executive orders are that they:

• are official documents issued by the executive branch of the federal government
• have the force of law.
• see the President direct and require federal departments, agencies and officials to take certain actions.
• do not require congressional approval

Historical Executive Orders

Executive orders have been used throughout the history of the presidency. Some have been used to make revolutionary changes for Americas

Contemporary Executive Orders

14151 January 29^th 2025

‘Ending Radical and Wasteful Government DEI Programs and Referencing’

14168 January 30^th 2025

‘Defending Women from Gender Ideology Extremism and Restoring Biological Truth to Federal Government’

14155 January 29^th 2025

‘Withdrawing the United States from the World Health Organization’

14197 February 3rd 2025

‘Progress on the Situation at Our Northern Border

14224 March 1^st 2025

‘Designating English as the Official Language of the United States’

14222 February 26^th 2025

‘Implementing the President’s Department of Government Efficiency Cost Efficiency Initiative’

14169 January 30^th 2025

‘Reevaluating and Realigning United States Foreign Aid’

Easy come easy go?

• Just as Executive Orders are easy for Presidents to make so they are equally easy for successor presidents to revoke. For example as we saw in 2000 President Clinton signed Order 13166 allowing Federal agencies to use languages other than English for their services. Whilst Trump, in order 14224 struck this down within the first few days of office.
• More tellingly Executive Orders surrounding the so-called Mexico City policy have shown the short lived nature of Executive Orders. In 1984 President Regan signed an Executive Order prohibiting Federal Funding to family planning clinics informing clients about abortion. Within days of being in Office Bill Clinton in 1933 reverse this. Then in January 2001 George W. Bush re-instated it. Under the next President Obama it was revoked, then re-instated under Trump before being revoked again under Biden.
• As these are the choice of one person, not Congress as a whole, they can easily be revoked and re-instated allowing them to be described by some as transient or temporary.

​

How can Congress limit and constrain Executive Orders?

The President, under the United States Constitution, has a raft of ‘Enumerated Powers’. These, under Article 2, clearly outline the role of the President

• Has the power to approve or veto bills and resolutions passed by Congress
• Through the Treasury Department, has the power to write checks pursuant to appropriation laws.
• Pursuant to the Oath of Office, will preserve, protect, and defend the Constitution of the United States.
• Serves as Commander-in-Chief of the United States military, and militia when called to service.
• Has the power to grant reprieves and pardons for offenses against the United States, except in the cases of impeachment.
• Has the power to make treaties, with the advise and consent of Congress.

​

• Has the power to nominate ambassadors and other officials with the advise and consent of Congress.
• Has the power to fill vacancies that happen when the Senate is in recess that will expire at the end of the Senate's next session.
• Shall periodically advise Congress on the state of the union and give Congress recommendations that are thought necessary and expedient.
• Has the power to convene one or both houses of Congress during extraordinary occasions, and when Congress cannot agree to adjourn has the power to adjourn them when he thinks the time is proper.
• Has the duty to receive ambassadors and other public ministers.
• Has the duty to see that the laws are faithfully executed.

Even with enumerated powers the President is limited by Congress

How can Congress limit and constrain Executive Orders?

• Often Presidents turn to Executive Orders due to frustration with the partisan gridlock of the Hill, but can Congress, on the Hill, limit and constrain this non-enumerated, extra-constitutional authority?
• What is important to note is that Executive Orders are not legislation and therefore can be superseded by legislation.
• The constitution was written in a way so as to ensure the president and Congress shared power in an equal way.
• Congressional elections are also more frequent than Presidential elections and so they claim to have a greater mandate to direct the Federal Government (although does this apply in the two years following the Presidential election?)
• Furthermore, in a time when Trump has a majority in both the Senate and House, then how can the President justify using the Executive Orders to get out of the Washington gridlock? Does this suggest that the President sees Executive Orders are their law making power.

How can Congress limit and constrain Executive Orders?

We saw earlier that President Barack Obama sought to use Executive Order 13492 to close Guantanamo Bay, Cuba. As a policy statement this showed Barack Obama’s intentions to ease some of the perceived excesses of the War on Terror.

​

However, Congress proved its ability to limit and constrain the President by voting down the Executive Order by refusing to fund the action. In an overwhelming 90-6 Senate vote, Congress stopped the Executive Order in its tracks.

​

Nonetheless, Obama signed this Exeucitve Order in January 2009, yet it took until May for the Democrat controlled Senate to vote against it. This time lag shows one problem in Congress’ ability to re-act to Executive Orders.

How can the Supreme Court limit and constrain Executive Orders?

Executive Orders can be overturned also by the judiciary.

This can take the form of federal courts ruling against Executive Orders or the Supreme Court

​

​

In this Executive order case we saw earlier the Supreme Court in the case of Youngtown Sheet & Tube Co. v. Sawyer (1952) saw the Supreme court rule this extension of Presidential power as unconstitutional.

​

How can the Supreme Court limit and constrain Executive Orders?

• Courts may strike down Executive Orders not only on the grounds that the president lacked authority to issue them but also in cases where the order is found to be unconstitutional in substance.
• In some cases, it is not an executive order itself that is challenged in court, but instead the manner in which executive branch officials have interpreted an order.
• While many executive orders have been challenged on specific statutory and constitutional grounds, others have been subjected to a “reasonableness review.” In the early twentieth century, the Supreme Court began to clarify the Fifth and Fourteenth Amendments guarantee of “reasonable due process” applying to Executive Orders too.
• This legal concept permitted courts to review both statutes and executive actions to ensure that they were reasonable. Critics of the reasonableness review, many of them progressive reformers, argued that the practice was antidemocratic because it substituted the judgment of courts for that of elected officials. Moreover, many believed that the courts applied reasonableness review too aggressively, in particular where economic regulation was concerned.

How can the Supreme Court limit and constrain Executive Orders?

• We saw earlier one historical Executive Order was 9066 of FDR to intern Japanese national and Japanese Americans during World War Two. Many Japanese challenged the ruling, and took particular aim at the Executive Order’s unconstitutional nature.
• One such Japanese-American was Gordon Hirabayashi. Escalated to the Supreme Court in 1943 in Hirabayashi v. United States (1943) and Korematsu v. United States (1944). In Hirabayashi, the Court upheld a curfew order directed at Japanese Americans, while in Korematsu, the Court approved an order excluding Japanese Americans from certain areas on the West Coast, which displaced thousands of people, forcing them to move to relocation camps.
• Both military orders were promulgated under Roosevelt’s executive order authorizing these measures as a defense against espionage and sabotage in the wake of the Pearl Harbour attack. In both cases, the Court ruled that the orders were not the product of racial animus or discrimination, but rather were legitimate military measures taken to protect national security. 
• The Court, although widely criticized for it, thus deferred to Roosevelt’s Executive Order

How can the Supreme Court limit and constrain Executive Orders?

More recently problems for Trump and his executive authority through Executive Orders have also been brought about by the Supreme Court.

​

14169 January 30^th 2025

‘Reevaluating and Realigning United States Foreign Aid’

14230 March 6^th 2025

‘Addressing Risks from Perkins Coie LLP’

Though headlines like this may be miss-leading. In a 5-4 decision the Supreme Court judges have agreed with a lower federal court that the Federal Government must pay aid contractors for 42 billion worth of already complete foreign aid work.

Thus, the court only limits the order in the past tense and does so by the slimmest of margins.

14169 January 30^th 2025

‘Reevaluating and Realigning United States Foreign Aid’

As this headlines suggests at the moment it is one federal judge and not the Supreme Court. Therefore, escalation to the Supreme Court may lead to a dissention from this earlier ruling.

The ruling though makes clear that the Executive Order stands against the First, Fifth and Sixth amendment and may be politically motivated as it seeks to intimidate attorneys who represent clients with interests at odds with the President. Should there be political motivation the Supreme Court is likely to uphold this ruling

14230 March 6^th 2025

‘Addressing Risks from Perkins Coie LLP’

How to use this information:

Executive orders boost the President’s power

Limits placed on Executive Orders constraining the President’s power

***It is always important to use information in revision, not just read it/listen to it/watch it***

wordwall.net/resource/91776685

https://wordwall.net/resource/91776685

https://carlam.cymru