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Why do U.S. Presidents have the power of the Executive Order?

President Biden's vaccine mandate for federal employees comes by way of Executive Order.

ATLANTA — President Biden’s vaccine mandate for federal employees comes by way of Executive Order, a power held by U.S. presidents from George Washington to the present.

With an Executive Order, Presidents can change course without the approval of Congress.  From the internment of Japanese Americans during World War II to President Harry Truman’s order to abolish segregation in the Armed Forces, the Executive Orders of American Presidents have been powerful and, at times, controversial.

Nearly every President has used them. The lone exception was William Henry Harrison who spent only about a month in the White House.

Emory Political Science Professor Andra Gillespie tells us the power is limited.

“Presidents don’t rule by fiat,” said Gillespie. “It has to be based on the rule of law.”

Congress passes laws. The Constitution states it’s the President’s job to “ensure those laws are faithfully executed.” So, Presidents often use Executive Orders to direct federal workers on how to enforce existing laws, sometimes changing direction during times of war or other emergencies.

Executive Orders do not create laws or give the President new powers.

“They are going back to the original documents, back to the statutes, back to the Constitution,” explained Gillespie. “Presidents can’t execute any laws that don’t already exist.”

In 2017, President Donald Trump issued a controversial executive order temporarily blocking travelers from seven Middle Eastern countries from entering the United States. It was based on existing laws written to protect the country from terrorist attacks. President Trump’s Executive Order was challenged in court, modified, and eventually eliminated by a proclamation from President Biden.

Gillespie said the most effective way to challenge an Executive Order is in front of a judge.

“The likely remedy is to go to court,” said Gillespie. “Yes, you can take the President to court.”

According to UC Santa Barbara’s American Presidency Project, George Washington signed only eight Executive Orders. Theodore Roosevelt was the first to sign more than 1,000 of them, but no one comes close to the record set by Teddy’s cousin. Franklin Delano Roosevelt signed 3,721 Executive Orders during his four terms as President.

Executive orders are subject to judicial review and may be overturned if the orders lack support.

Presidential executive orders, once issued, remain in force until they are canceled, revoked, adjudicated unlawful, or expire on their terms. At any time, the president may revoke, modify or make exceptions from any executive order, whether the order was made by the current president or a predecessor. Typically, a new president reviews in-force executive orders in the first few weeks in office.

And why was it such a big deal, for example, that President Barack Obama moved to protect millions of illegal immigrants from deportation using his executive powers?

Put simply, an executive order is a type of written instruction that presidents use to work their will through the executive branch of government.

Under our system of government, the president’s authority to issue such orders (or to engage in any other form of unilateral executive action) must come from the Constitution or federal law. Put another way, an executive order can be used to execute a power the commander in chief already has. It can’t be used to give the presidency new powers.

In particular, Article II of the Constitution assigns the president the roles of commander in chief, head of state, chief law enforcement officer, and head of the executive branch. The president has the sole constitutional obligation to “take care that the laws be faithfully executed,” and is granted broad discretion over federal law enforcement decisions.

Washington issued a total of eight executive orders in his two terms, according to the project’s data, while John Adams, James Madison, and James Monroe all issued only one. Presidents who issued the least also include Thomas Jefferson (four) and John Quincy Adams (three).

The record-holder by far, though, is Franklin Roosevelt with 3,721—five of which the Supreme Court overturned in 1935.

Even so, the Constitution imposes some limits on the lawmakers’ ability to micromanage the president’s decision-making and enforcement of laws.

The constitutional separation of powers among the executive, legislative, and judicial branches not only supports but limits a president’s authority to issue executive orders and other directives. So some friction naturally occurs.

Vaccine for federal workers:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301, 3302, and 7301 of title 5, United States Code, it is hereby ordered as follows ...

Trump ban on Muslims:

By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows:

Japanese internment:

WHEREAS the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities as defined in section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655 (U. S. C., Title 50, Sec. 104): President Franklin Delano Roosevelt used the authority of the revised Alien Enemies Act to issue presidential proclamations #2525 (Alien Enemies – Japanese), #2526 (Alien Enemies – German), and #2527 (Alien Enemies – Italian), to apprehend, restrain, secure and remove Japanese, German, and Italian non-citizens.[8] On February 19, 1942, citing authority of the wartime powers of the president and commander in chief, Roosevelt issued Executive Order 9066, authorizing the Secretary of War to prescribe military areas and giving him authority that superseded the authority of other executives under Proclamations 2525–7. EO 9066 led to the internment of Japanese Americans, whereby over 110,000 people of Japanese ancestry, 62% of whom were United States citizens, not aliens, living on the Pacific coast were forcibly relocated and forced to live in camps in the interior of the country.[32][33]

While an executive order can have the same effect as federal law under certain circumstances, Congress can pass a new law to override an executive order, subject to a presidential veto.