Executive Orders

In his first full day in office, Pres. Trump signed a number of executive orders. His actions have rekindled fierce debate on the legitimacy of EOs.

A lot of people seem to adopt one of two extremes. On the one hand, many argue the president can legitimately issue executive orders with virtually no limitation. The left aggressively advance this idea during the previous administration. In many cases Obama utilized EOs to formulate policy, shape rules and essentially legislate from the Oval Office.

On the other side of debate, some claim the president cannot issue executive orders for any purpose whatsoever.

Constitutionally, the truth falls somewhere in the middle.

The president has the authority to issue EOs relating to the operation of the executive branch, and to direct and manage its personnel. For example, Trump signed an order during his first full day in the White House instituting “a freeze on the hiring of Federal civilian employees to be applied across the board in the executive branch.” The president remains perfectly within his authority to direct staffing levels in executive branch agencies.

On the other hand, the president cannot constitutionally issue orders that implement rules, regulations and edicts applying to the people, that serve to bypass the legislative process, or that subvert legislation passed by Congress and signed into law. This crosses over into legislative authority. For example, EOs establishing environmental rules fall outside of presidential executive authority.

Historian and lawyer Kevin Gutzman summed it up succinctly.

Article II, Section 1 of the Constitution says the executive power will be vested in a president of the United States. Other members of the Executive Branch are his subordinates. He can legitimately order them to carry out his legal policies. What he can’t legitimately do is order them to carry out illegal policies, as when Obama ordered them to ignore the calendar established by the PPACA and when he used one to rewrite the immigration laws.”

In simplest terms, the president can only issue EOs that conform with his constitutionally delegated executive powers.

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