Background on Executive Orders

In anticipation of a series of executive orders by President Trump, this memorandum summarizes the legal basis for, and limitations upon, executive orders.

Neither the Constitution nor any federal statute defines an “Executive Order.”

Federal law merely requires that executive orders be published in the Federal Register (44 U.S.C. §1505).

In 1962, President Kennedy established, by Executive Order 11030, procedural requirements for the issuance of executive orders. Those requirements call for a draft order to be reviewed by the Director of the Office of Management and Budget (OMB) and the Attorney General. There are no consequences for not following these procedures, and some executive orders have been issued without complying with them.

Typically, executive orders direct a federal agency to take an action, such as issuing a regulation. However, some executive orders may simply be general policy statements and others may have an immediate binding effect on private parties.

To be legally binding, an executive order “must stem either from an act of Congress or from the Constitution itself.” (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952)). While courts review the validity of executive orders on a case-by-case basis, Justice Jackson established a three-part framework for reviewing the legality of executive orders in his concurring opinion in the Youngstown case. That framework may be summarized as follows:

(1) When the President acts pursuant to an express or implied authorization from Congress, there is a presumption of Presidential authority;

(2) When the President acts in the absence of statutory authorization, the validity of the executive order hinges on a consideration of all the circumstances which might shed light on the view of the Legislative Branch toward such action, including congressional inertia, indifference, or acquiescence; and

(3) When the President acts in contravention of the will of Congress, his power is at its “lowest ebb” and a court can sustain the President’s actions only when Congress is disabled from acting on the subject.

The Supreme Court has recognized that this framework is not a bright line test, and many executive orders may not fit neatly into one of the three categories established by Justice Jackson, “but rather at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition.”  (Dames & Moore v. Regan, 453 U.S. 654, 669 (1981)).

In the Dames & Moore case, the Supreme Court upheld an executive order issued by President Carter that blocked a court judgment against the Iranian government related to the seizure of Iranian assets in the U.S. (The order was part of the agreement to release American hostages held by Iran.) In upholding the executive order, the Court emphasized the need to look for any evidence of Congressional intent to authorize the action. The Court also stated that a history of prior Congressional acquiescence with respect to prior executive orders in the area is a relevant factor. Thus, there need not be an affirmative delegation of authority to the President to act if a court can find any basis for concluding that Congress contemplated such action by the President.

Other cases have taken a narrower approach to the scope of the President’s authority. For example, in Liberty Mutual Insurance Company v. Friedman, (639 F.2d 164 (4^th Cir. 1981)), the Court of Appeals for the Fourth Circuit applied a different standard, stating that there must be some reasonable basis (rather than any basis) to conclude that Congress contemplated unilateral Presidential action. In that case, the executive order required insurance companies that provided workmen’s compensation coverage to government contractors to abide by certain affirmative action requirements. In reviewing the order, the Court of Appeals determined that the Civil Rights Act of 1964, upon which the order was based, provided neither an implicit nor explicit delegation of lawmaking authority to the President.

In some more recent cases, the courts have required clear statutory authority for the President’s actions. For example, in League of Conservation Voters v. Trump, (363 F. Supp. 3d 1013 (D. Alaska 2019)), the District Court held that an executive order revoking a prior designation protecting certain offshore areas from oil and gas exploration was not authorized by law and therefore was invalid. The District Court noted that the Outer Continental Shelf Lands Act gave the President the power to remove covered lands from development but did not specifically authorize the President to revoke such designations once made. Similarly, in San Francisco v. Trump, (897 F. 3d 1225 (9^th Cir. 2018)), the Court of Appeals for the Ninth Circuit invalidated President Trump’s executive order prohibiting the disbursement of federal funds to jurisdictions that refused to cooperate with immigration authorities. The Court of Appeals concluded that the funds for San Francisco were appropriated by Congress and the President has no power to cancel acts of Congress. These cases indicate that the courts may require a stronger indication that Congress intended to grant the President power to unilaterally act by executive order than is indicated in earlier cases.

As noted above, executive orders often direct an agency to issue a regulation implementing the order. In those instances, the regulation may be challenged based upon alleged violations of the Administrative Procedure Act (APA), which requires that a regulation be subject to notice and comment, be in accordance with law, and not be arbitrary or capricious (5 U.S.C. §§553, 706). Legal challenges to a regulation implementing an executive order also may benefit from the Supreme Court’s recent decision to overturn the Chevron doctrine, which required courts to defer to an agency’s reasonable interpretation of a statute.

An APA challenge may not be brought against an executive order itself because the Supreme Court has ruled that the APA applies only to agencies, not the President (Franklin v. Massachusetts, 505 U.S. 788 (1992)). However, some scholars have called for the establishment of clearer standards of review for executive orders, drawing upon features of the APA. (See: Lisa Manheim, Kathryn A. Watts, Reviewing Presidential Orders, the University of Chicago Law Review, Volume 86, Number 7, November 2019; and David M. Driesen, Judicial Review of Executive Orders’ Rationality, 98 BU L Rev 1013, 1015 (2018)).

Finally, executive orders lack the permanence of laws since they may be freely revoked or revised by a new executive order issued by a subsequent President.