Q: Is there any limit to what the President can do with executive orders?
A: It seems like every time you turn on the news there is something about executive orders. Almost immediately lawsuits will be filed to prevent enforcement of the order and shortly after the order is signed a federal judge may issue an order prohibiting its enforcement until both parties can present their case about why the order should or should not be enforced. In this repetitive news cycle, it makes sense to ask how broad the president’s power to pass executive orders is and what, if any, limits there are on a president’s power?
First, it is important to recognize that executive orders are not a new creation. George Washington signed eight executive orders during his time as president. Officially, presidents throughout the history of the United States have signed almost 14,000 executive orders. Some historians argue that number is closer to 50,000. While President Trump is fond of executive orders, he is nowhere close to having the record. To date Trump has signed about 100 executive orders. President Obama signed 276 during his presidency. However, the record is currently held by President Franklin D. Roosevelt who signed 3,721 executive orders.
As part of the federal government, the president must have authority to issue executive orders. Presidents get that authority from either the Constitution or federal law. Executive orders can’t be used to give the president new powers but can only be used to exercise a power that the president already has. Article II of the Constitution is one of the main sources of power for executive orders. Article II requires the president to “take care that the laws be faithfully executed.” When the president issues orders regarding the execution of the law his power is especially strong, and Congress has little ability to regulate or limit what the president can do. Another source of power to issue executive orders is from power passed by statute. When the president’s power is tied to a statute, congress can override that statute and effectively nullify the president’s power.
As with all laws, executive orders can be reviewed by federal courts to determine whether they are legal or not. An executive order can be struck down by federal courts if the president did not have the proper power to issue the order or if the order was issued for an unlawful purpose. The courts invalidated the first versions of President’s Trump travel ban and also invalidated a portion of President Obama’s DACA program. As long as the president has the authority to issue and executive order and does not do so for an unlawful purpose, the executive order will be upheld.