How Executive Orders Work, and What Limits Them

An executive order is a written directive, signed by the president, that tells the federal government how to carry out its work. Executive orders can shape policy quickly, but they are not laws passed by Congress. Each one must rest on power the president already has, and courts, Congress and future presidents can all limit or undo it.

Here is where that power comes from, how an order is reviewed and published, and what checks apply.

What is an executive order?

The Office of the Federal Register says the president “manages the operations of the Executive branch of Government through Executive orders.” Yet no law defines the term. According to the Congressional Research Service (CRS), neither the Constitution nor any statute provides an overarching definition, and no statute grants a general power to issue them, though that power is widely accepted as part of the presidency.

The practice is as old as the office. CRS notes that George Washington issued one of the first, asking department heads for “a clear account” of their affairs. Orders have since been used to suspend habeas corpus during the Civil War, to establish World War II internment camps for Japanese Americans and, in Harry Truman’s 1948 Executive Order 9981, to bar discrimination in the armed forces. Many others simply set up advisory committees.

Where does the power come from?

An executive order is only as strong as its legal basis. CRS calls it “black letter law” that an order’s authority “must stem either from an act of Congress or from the Constitution itself.”

Article II vests “the executive Power” in the president, directs the president to “take Care that the Laws be faithfully executed” and names the president Commander in Chief. Orders resting mainly on the Constitution often involve foreign affairs or the military; Truman cited his Commander in Chief role when he desegregated the armed forces.

Few orders on domestic matters rest on constitutional power alone, CRS says; they frequently draw on power Congress delegated by statute. A law authorizes the president to act under certain conditions, and the order puts that authority to use. Congress can also ratify an order after it is issued. Without a valid source, an order has no legal effect.

How an executive order is drafted and reviewed

The formal process comes from an executive order itself. Executive Order 11030, issued by President Kennedy on June 19, 1962, and amended several times since, sets the rules for preparing executive orders and proclamations. Every draft must carry a suitable title and cite the authority under which it is issued.

Under the order, the review runs in this sequence:

1. Agency proposal. The originating agency sends the draft to the Director of the Office of Management and Budget (OMB) with a signed letter explaining its “nature, purpose, background, and effect” and how it relates to existing laws and orders.
2. OMB review. CRS says OMB shares the draft with other interested agencies, which comment on policy and legal issues. Debate over wording commonly produces at least three drafts and three rounds of comments.
3. Justice Department review. If OMB approves, the draft goes to the Attorney General “for his consideration as to both form and legality.” The Justice Department’s Office of Legal Counsel (OLC), acting by delegation, says it reviews all executive orders and substantive proclamations for form and legality.
4. The president’s desk. A draft rejected by OMB or the Attorney General may reach the president only with a statement of the reasons. CRS says the White House Staff Secretary sends the final draft to the president with OLC’s certification.

One caveat: these steps are not enforceable. CRS notes that Executive Order 11030 provides no consequences for skipping them, and that significant orders have been issued without following the process.

Signing, numbering and the Federal Register

Once the president signs, the original goes to the Office of the Federal Register at the National Archives. According to the Federal Register’s executive orders page, that office numbers each order consecutively and publishes it in the daily Federal Register shortly after receipt. Because an order can be delivered only after signing, publication lags by at least one day and typically several.

Publication is required by law. Under 44 U.S.C. 1505, executive orders and proclamations must be published unless they lack general applicability and legal effect or apply only to federal agencies and their employees.

Executive orders vs. memoranda vs. proclamations

Presidents issue directives under several names. CRS says the differences are often a matter of form rather than legal effect.

The audience split comes from a 1957 House committee report cited by CRS, but all three forms can direct officials. OLC concluded in 2000 that “there is no substantive difference in the legal effectiveness of an executive order and a presidential directive that is styled other than as an executive order.”

Sometimes the law dictates the label. The Immigration and Nationality Act, for example, lets the president suspend the entry of certain foreign nationals “by proclamation.”

How much legal force does an executive order have?

A valid executive order has the force and effect of law, according to CRS. It does not expire when its author leaves office; it stays in effect until a court strikes it down or it is modified or revoked.

Most orders work through agencies. An October 2026 order on red-dyed diesel, for example, told the Treasury Secretary to decide within five days whether a disaster provision of the tax code allowed a fuel tax deferral, as our report on the dyed diesel order explained. The tax relief depended on that agency finding.

What limits an executive order?

The Constitution and the Youngstown test

The leading case is Youngstown Sheet & Tube Co. v. Sawyer. On April 8, 1952, during the Korean War, Truman issued Executive Order 10340, directing the Commerce Secretary to take possession of most of the nation’s steel mills to head off a strike. The Supreme Court ruled against him on June 2, 1952. Writing for the Court, Justice Hugo Black said the president’s power to issue the order “must stem either from an act of Congress or from the Constitution itself,” and found neither.

Justice Robert Jackson’s concurrence set out three categories that courts still use:

• Maximum power: when the president acts with the express or implied authorization of Congress.
• A “zone of twilight”: when Congress has neither granted nor denied authority, and the president relies on independent powers.
• The “lowest ebb”: when the president acts against the expressed or implied will of Congress. Truman’s seizure fell here, because Congress had rejected seizure as a tool for labor disputes when it passed the Taft-Hartley Act of 1947.

Congress cannot hand the president an unconstitutional power, either. The Supreme Court struck down the Line Item Veto Act in 1998 even though Congress had passed it, which is why a presidential veto still covers a whole bill.

The courts

In the steel case, a federal district court issued a preliminary injunction on April 30, 1952, barring the Commerce Secretary from acting under the order. Challengers today often seek a temporary restraining order or preliminary injunction against the officials carrying out an order, tools explained in our guide to how federal judges pause government actions. CRS notes that agency actions implementing an order can be challenged under the Administrative Procedure Act, even though the president’s own actions cannot.

Congress

Congress can modify or nullify an order that rests on power it delegated. The Energy Policy Act of 2005, for example, revoked a 1912 order creating Naval Petroleum Reserve No. 2. Congress can also deny funding, as it has repeatedly done for an office created by a Roosevelt-era order. Because a repeal can be vetoed, one the president opposes may need two-thirds of each chamber. Congress cannot, however, undo an order resting on a power the Constitution gives the president alone.

The next president

A sitting president can revoke or modify any earlier order by issuing a new one, CRS says. It traces one back-and-forth: in 1992, George H.W. Bush required most federal contracts to include a notice telling employees they could not be required to join a union. Bill Clinton revoked it in 1993, George W. Bush revoked that revocation in 2001, and Barack Obama reversed course again in 2009.

How to look up an executive order

FederalRegister.gov lets readers browse executive orders signed since 1937 by president and year, or download them in bulk. Its Disposition Tables, compiled by Federal Register editors, list each order’s signing date, citation and current status. The National Archives hosts tables through January 19, 2017. For legal research, the site advises checking the official edition on GovInfo.

For historical counts, the American Presidency Project at the University of California, Santa Barbara keeps a running table. It counts 3,726 orders for Franklin D. Roosevelt over about 12 years, eight for George Washington and 276 for Barack Obama over eight years. The project notes its figures differ slightly from National Archives tallies and leave out memoranda and other directives.

The bottom line

An executive order lets a president direct the federal government with a signature, after review by OMB and the Justice Department, and it becomes public through the Federal Register. But every order needs a footing in the Constitution or a statute. Judges can pause or strike it down, Congress can override one built on delegated power, and the next president can revoke it. Follow the latest White House actions and court fights on the LiveNewsWorld U.S. Politics Live center.

Sources

• Office of the Federal Register, Executive Orders; National Archives, Executive Orders Disposition Tables and Executive Order 11030
• National Archives, The Constitution of the United States: A Transcription (Article II), and 44 U.S.C. 1505, via Legal Information Institute
• U.S. Department of Justice, Office of Legal Counsel
• Congressional Research Service, Executive Orders: An Introduction (R46738, March 29, 2021)
• Supreme Court of the United States, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), via Legal Information Institute; The American Presidency Project, Executive Orders