Can someone explain to me how Executive Orders work?

Factual Questions
1

I’m not American, but like everyone in the World, I’ve been witnessing the flurry of executive orders coming out of the White House.

I’m intrigued with how these work, and how they differ from other initiatives which the President has to get through Congress and the Senate in order to enact. What is permissible in an Executive Order and when does the President have to consult the lower and upper houses to pass laws? How do executive orders pass into law? And not sure I even understand if they are law, or just a wish list?

2

On paper, the President cannot independently pass a law. Only the legislature can do that. The President then signs the law as a final acknowledgement, but the President didn’t write it.

There are, of course, wrinkles. Many Presidents will, more or less occasionally, append a “signing statement” which describes how the President chooses to interpret the law and plans to enforce it. This has no real legal force, as interpretation of the law is reserved to the courts, but it does serve various political purposes. And the President can choose to veto the law as unacceptable, at which point the legislature can revise the law or attempt to override the veto. Also, while the President doesn’t write laws, the President is free to send proposed legislation to congressional allies for introduction into the process; these will then be negotiated and amended like any other law in progress.

But in the simplified picture, the President doesn’t make law. Only Congress can do that

Executive orders, again in principle, fall into the penumbra of the President’s authority to execute the law. The law says an administrative department overseen by the President is expected to do X, Y, and Z, and powers and authorities are defined to allow that to happen. Within the context of those powers and authorities, the President can issue an executive order describing how X, Y, and Z will be accomplished.

Simple example: If the law says all agricultural imports from Forestvania must be thoroughly inspected for harmful invasive species, but doesn’t clearly define what constitutes agricultural products or harmful species, it generally falls to regulators to work out the details. If a political kerfuffle arises — say, some Senator’s district relies on Forestvanian lumber imports which are being held up under the rules — the President can issue an XO that says lumber from Forestvania will now be considered an industrial import to be screened under different rules. (This is entirely a fabricated example, just to illustrate.)

However, in practice, where a political logjam may be delaying or obstructing a legislative solution, Presidents sometimes try to solve the problem by taking a more expansive view of the authority granted them.

Continuing the example above: let’s say the law applying to Forestvania does define agricultural imports, and does explicitly say lumber is not included. But let’s say the imported lumber is consistently infected with the Dreaded Exploding Bark Beetle, and Americans are being injured in port facilities, but the Senator whose district depends on the lumber is blocking attempts to amend the law. The President might issue an XO which instructs the regulatory agency to interpret agricultural products to include any naturally grown plant whose stem exceeds fifteen centimeters in diameter, thereby sweeping in tree-based products while not actually rewriting the law. This will of course result in legal action as stakeholders challenge the President’s authority to make such a change, and court decisions will result which either overturn the President’s XO or affirm his power to issue and enforce it.

Considering the forum, I’ve tried to stay away from anything that drifts into current politics, but I hope these invented examples paint a useful picture.

3

So if I’m reading this right, XOs are essentially tinkering with or defining parts of existing law, and are potentially subject to challenge in the courts? Do XOs go into force when they’re signed and then wait to be stopped by legal challenge in the courts? Do government departments, such as the US CPB, jump into action immediately?

4

Executive orders are most of what a President does in order to be President. When the President tells any of the many government agencies what to do (which is what the President’s job is), that’s an executive order. There are only a few things the President does that aren’t executive orders, and those are mostly the things that overlap with the other branches of government (like signing or vetoing bills, or nominating new judges).

5

Here’s something that just occurred to me reading this thread: does the recent SCt decision overruling Chevron lessen the impact of executive orders?

(Apologies for posting an unformed idea before researching it myself.)

6

.nvm.

7

This gets into territory between what can be accomplished by an Executive Order, and what must be accomplished through rulemaking.

Generally, when Congress passes a law, it will charge the administering agency with adopting rules for the implementation of the legislation. Rulemaking is a statutorily-defined process whereby the agency develops and publishes proposed rules with the specifics for how the legislation is to be implemented – e.g. defining what certain terms mean, establishing who specifically will undertake any action and what procedures they will use, etc. There must be a public comment period on proposed rules, and the agency must address any comments in what they finally adopt. Rules can be challenged in court.

The President cannot override formally-adopted rules through an executive order. He would need to have his Secretary of whatever department is implicated start a new round of rulemaking to repeal or modify the existing rules. That will generally take months – potentially years – to finally adopt a modified rule.

8

Yeah, pretty much. Congress writes the laws, the Executive branch enforces them (or not), and the courts interpret them. Each has leeway in their respective duties, given both the ambiguity of language/intent and the reality of political negotiations & backstabbing.

For simple, noncontroversial laws, it’s just a formality, a routine separation of concerns. But in the case of a divided government, each branch will try to maneuver around the others in various ways.

In a united government (like the full red one we currently have), it’s more likely that each branch will try to help the others and try to enshrine their agenda permanently (through favorable Supreme Court decisions, appointments, Constitutional amendments, etc.).

It just depends. Agencies and departments are still made of individual leaders (often appointed) and rank-and-file civil servants, each with their own politics. If they agree (or don’t disagree enough) with the order, they’ll just do it. That’s how government gets anything done day-to-day at all. For every controversial order there are a hundred mundane ones that you never hear about because it’s just part of their boring daily work.

In cases where enough people on the ground disagree with the order, a leader will try to fight it publicly or give up and step down, while rank and file may protest, take over social media, or sabotage the order in small little ways. We saw a lot of tiny rebellions the first time around. Presumably this time they know better and will do a better job of cleaning house and removing all non-aligned staffers.

9

So who introduces the bills that goes to Congress to debate/pass laws? Not sure I’m explaining it properly, but in the UK, in large part the Government (basically the Executive headed by the PM) instigate the bills that Parliament debates and passes into law. The courts, in this instance, have no say, as the laws passed by Parliament are supreme.

Another question, more specific. As the Supreme Court upheld the ban on TikTok, how can the President block or suspend this by XO, if the courts get the final say?

I’m still pretty confused by XOs but thank you for trying to explain it to me!

10

Officially, all bills originate with one or more members of the legislature who officially sponsor it, and officially, any bill involving revenue has to originate in the House. But if the President wants some bill to be passed, he’s not going to have a hard time finding a Congressperson willing to sponsor it for him.

11

This is a great example of how the Executive Order is used. The Protecting Americans from Foreign Adversary Controlled Applications Act was passed by Congress and signed into law by President Biden. However, it bans Chinese control of TikTok but does allow someone else to buy it. I am not presuming Trump’s motive, but his Executive Order does not nullify the law but allows for time for TikTok to find a buyer or as he put it “an opportunity to determine the appropriate course forward”. So what is going on is the President has some latitude in how to enforce a law in serving a specific purpose.

12

A law passed by Congress can give the president discretion as to the timing for the implementation, especially for complicated matters. Biden signed the bill, so it is in force. The law gives the President the power to pause the law for 90 days, if there is a reasonable chance for a commercial sale and more time is needed to work ou the details.

Trump has signed an XO suspending the bill for 90 days.

There are legal issues surrounding that decision, as mentioned in this article:

13

Whether the bill passes is another matter. That depends on the political composition of the two houses, the policy support for the bill, the president’s lobbying efforts in Congress, and other political factors.

14

Officially, a member of Congress. In reality (and I hope this doesn’t drift into GD territory…) many of our bills are ghostwritten by industry lobbyists, think tanks, etc. Many of them are voted on and passed nearly verbatim and without being fully read by the elected representatives, although you’d hope that at least their staffers read and summarized them. See Model act - Wikipedia and When Lobbyists Literally Write The Bill : It's All Politics : NPR

Someone explained the TikTok situation already, but generally speaking, this isn’t a black-and-white matter. Nothing in US law is. The thing to keep in mind is that every passed legislation is always up for debate and different enforcement mechanisms and outright malfeasance, and if the different branches of government are really at odds (like a split red/blue government), each will try whatever it can to get its way. It’s a political process of give-and-take, tit-for-tat, not just a simple, straightforward pipeline.

From “someone had an idea” to “they drafted the first version of the bill” to “now it’s passed” to “the police/IRS/EPA/DHS will go after you for this”, each step of a law being drafted, passed, and enforced is subject to numerous political interventions, some of which will effectively make it dead in the water even if it’s on the books.

For example, even though weed is federally illegal (under the Controlled Substances Act, I think), various presidents will bend the rules to try to limit federal enforcement actions: https://crsreports.congress.gov/product/pdf/LSB/LSB10655

Presidents can use executive orders, vetoes (including pocket vetoes, where they just ignore a bill), the bully pulpit to push for/against things, etc. By and large, if the President is popular enough (among Congress and the populace at large), they can get away with just about anything, because the only real check on their power is impeachment & conviction. If the Congress refuses to do that, there’s no outside force (short of a coup) that can really stop the President from doing something, no matter its legality. Because of this, the power of the presidency has waxed and waned over time as different presidents try to stretch the rules in novel ways, only to be eventually reined in by Congress in subsequent years.

If the President unilaterally orders something but Congress doesn’t like it, they may try to allocate budget away from whatever that thing/agency is (or just pass a bill directly prohibiting it). They can also outright impeach the president, but as we’ve seen, that doesn’t really do anything.

The Supreme Court will also try to adjudicate some of these disputes, and sometimes that settles a matter definitively, while other times it only introduces more complexity (like the TikTok situation, or how abortion became a state by state matter). Ultimately they are political appointees too (and you can see how the liberal and conservative justices vote differently… it’s pretty cut-and-dry partisanship on certain issues/cases).

In theory this is all a part of a complex system of checks and balances, but in reality, many of those checks and balances were devised in an era where the United States was much smaller, much less populated, and less subject to technological influences (everything from computer-assisted gerrymandering to precision polling to individually tracked social media and influencing), not to mention the gazillions of dollars that is disproportionately concentrated in the hands of a very few people. IMHO: the old checks and balances aren’t really able to keep up with modern shenanigans. Don’t think I can really get much more into that without straying into GD.

There are some reasonably good TV shows that depict the basic American political process, like Designated Survivor (US-based) and The Diplomat (US-UK relations, with politics of both countries). There are also older shows like House of Cards or West Wing, but I haven’t watched them.

15

Right, the President doesn’t have the level of power that a Prime Minister does in a parliamentary system. I was just pointing out that the fact that a President can’t technically initiate legislation is, in practice, mostly irrelevant.

It’s inevitable that it be that way. If you want to write a bill regulating financial dealings, for instance, it needs to be written by someone with a deep and detailed expert understanding of finance. Most members of Congress would, one hope, have at least a reasonable layman’s level of understanding, but most of them aren’t professional bankers. Likewise for nearly any other topic on which one might wish to legislate.

More relevantly, the Founders mistakenly believed that the political battles would be between the different branches of the government, rather than between different political parties that are represented in the different branches of government.

16

Do members of Congress do the actual writing? I have always been under the impression that they have staff/aides do the actual writing.

17

I recall a segment of Schoolhouse Rock dealing with executive orders…ah, here it is

How a Bill Does Not Become a Law - SNL

18

For the most parts, the texts of bills and many amendments are written by the lobbyists backing them, and at most lightly edited by the sponsoring Congressperson’s staff.

Stranger

19

Federal agencies (at least the ones I am familiar with - and have worked for one for 38 years) have considerable discretion as to how they handle all manner of things within their purview. And that discretion is heavily influenced by the incumbent Pres. Not all such discretion is exercised through notice and comment rule-making.

Take something like the setting of priorities or timetables/goals. An Agency can decide they are going to direct a greater share of their resources to one specific type of matter, instead of another. And that they wish the preferred matters to be handled more promptly. That sort of priority setting can be done simply through internal memos from on high. And those memos can be triggered by an EO - or even just a phone call from/meeting with the Pres. It takes quite a bit for that sort of discretion to rise to the level of a justiciable Constitutional claim.

And, even if we are talking rulemaking, the Pres can say, “Enact rules to achieve this certain result.” The rulemaking process can often appear to be a facade, reaching a preordained result.

Or, as someone said upthread, the Pres can make his wishes known, and have a sympathetic Congresscritter insert language into some bloated legislation.

So the Pres does not really WRITE policy. But he IS able to exert influence in many ways.

20

Not directly on point but I thought it relevant. Just received this in an email addressed to all Agency personnel:

We are taking steps to close all agency DEIA offices and end all DEIA-related contracts in accordance with President Trump’s executive orders titled Ending Radical and Wasteful Government DEI Programs and Preferencing and Initial Rescissions of Harmful Executive Orders and Actions.

These programs divided Americans by race, wasted taxpayer dollars, and resulted in shameful discrimination.

We are aware of efforts by some in government to disguise these programs by using coded or imprecise language. If you are aware of a change in any contract description or personnel position description since November 5, 2024 to obscure the connection between the contract and DEIA or similar ideologies, please report all facts and circumstances to DEIAtruth@opm.gov within 10 days.

There will be no adverse consequences for timely reporting this information. However, failure to report this information within 10 days may result in adverse consequences.

Just a tad Big Brother-ish, no?