What is an Executive Order and How Does it Work?

During his first two weeks in office, President Donald Trump has signed nearly 40 executive orders. They cover a dizzying array of policy areas --from immigration to public school -- and many of them have already been challenged in court. The orders have impacted all of our lives, and, constitutional or not, the damage that some of these orders threaten to do is real.

But can President Trump actually carry out the policy plans outlined in his executive orders? Below, the ACLU explains the history, function, and limits of a presidential executive order.

Article II of the Constitution vests the president with executive power over the government, including the obligation to “take care that the laws be faithfully executed.” An executive order is a written directive, signed by the president, that orders the government to take specific actions to ensure “the laws be faithfully executed.” It might mean telling the Department of Education to implement a certain rule, or declaring a new policy priority. Executive orders, however, cannot override federal laws and statutes.

Statutes have to be passed by Congress and signed by the president. Or, if vetoed, then Congress must override the veto for the bill to become law. Executive orders can’t preempt this process. Furthermore, the Constitution gives Congress control over things like taxation, spending, and certain war powers. Most things we think of when we think of laws come from Congress: what counts as a criminal offense, how much the federal government can tax our income, and declaring war or making treaties.

With an executive order, the president can’t write a new statute, but an order can tell federal agencies how to implement a statute. For example, Congress can declare a certain drug legal or illegal. But with an executive order, the president can tell the Department of Justice if prosecuting certain drug cases is a priority or not.

With an executive order, President Trump can order the federal government to take any steps that are within the scope of the constitutional authority of the executive branch, and do not violate any federal law.

The Constitution has a set of checks and balances written into it so that no one branch of the government is more powerful than the other. The president can’t use an executive order to sidestep those checks and balances, and the president can’t take over powers from other branches, such as the power vested in Congress to pass new statutes or in the courts to invalidate certain laws as unconstitutional.

Some executive orders take effect as soon as the president signs the order. But many other orders do not have any impact until a government agency takes some additional steps. Very often, an executive order requires a federal agency to write a report, undertake an investigation, or promulgate a new regulation. Those steps can often take months, and sometimes years. The order may provide a deadline (like telling an agency it has 60 days to make a certain recommendation for action), but it doesn’t have to.

Those checks and balances provide a few ways that an executive order can be stopped:

• Congress can enact a law that reverses what the president has done, provided Congress has the constitutional authority to legislate on the issue
• A court can hold that an executive order is unlawful if it violates the Constitution or a federal statute
• Any future president can issue a new executive order that rescinds or amends the earlier executive order

Every single president, from George Washington to Donald Trump, has issued executive orders. Most modern presidents issue hundreds of them during their presidency. While some executive orders are pretty mundane, such as declaring a federal holiday or a day of mourning, others have been among the most important actions the United States government has ever taken.

Abraham Lincoln used an executive order—the Emancipation Proclamation—to address slavery during the Civil War. Franklin Delano Roosevelt issued an executive order to integrate the shipyards and other military contractors. Harry Truman signed an executive order to integrate the military. Lyndon Johnson used an executive order to impose civil rights obligations on all federal contractors. More recently, Joe Biden signed an executive order to require every federal agency to find ways to facilitate voter registration.

But some of the federal government’s worst actions also came via executive order. Roosevelt, for example, used an executive order to force the relocation and internment of Japanese Americans to concentration camps. And in his first week of his second presidential term, Trump used an executive order to rescind Johnson’s historic executive order requiring government contractors to comply with civil rights obligations

Trump, or any president, is misusing executive order authority if the president orders the government to take actions that are not authorized by the Constitution or are in violation of federal laws. That’s when the courts must step in to safeguard our rule of law. However, an executive order can be lawful and still cause harm, especially when it threatens important civil liberties or civil rights.

President Trump’s order rescinding Johnson’s order concerning civil right obligations of federal contractors, for example doesn’t overrule any statute that governs equal protection in employment. Even so, it undermines civil rights protections and sends the signal that federal contractors won’t have the same obligation to protect their employees, and it communicates to the public that equal protection is not a priority.

Executive orders can be an effective way to carry out policy while staying within the rule of law. However, as we’ve seen with the Trump administration, they can also cause chaos, damage the democratic process and harm our must vulnerable communities. At the ACLU, we have more than 100 years’ experience holding powerful entities, like the executive branch, to account. Already during this administration, we’ve explained how Trump’s most recent executive orders rolling back DEI efforts, attacking birthright citizenship and targeting trans people are unlawful. We’re continuing to advocate and fight whenever President Trump uses executive orders to attack our civil liberties and civil rights.