What is an Executive Order and What Legal Weight Does it Carry? 

Many of President Trump’s policy decisions in the first two months of his administration have come under fire for their lack of wisdom, their illegality, and their unconstitutionality. Criticism and condemnation have come from many places, including ACS, legal scholars, and even members of Congress from the president’s own party. The majority of the presidential actions being denounced have come in the form of executive orders, raising the question for many, “What is an executive order and what legal weight does it carry?” 

This piece provides a brief, high level explanation of executive orders, how they may violate the law and Constitution, and how they may be invalidated.  

Executive Orders and the Constitution 

Though not straightforward, the answer to the question of what an executive order is starts with the U.S. Constitution. 

Article I of the U.S. Constitution gives Congress the power and responsibility to pass all laws. Article II gives the President the power and responsibility to execute the laws that Congress passes. Article III gives the judiciary the power to review, “all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties . . .”  

Put simply, Congress makes the laws, the President enforces the laws, and the judiciary decides whether congressional or executive actions are lawful and constitutional. This may seem straightforward, but throughout the country’s history, the lines of demarcation for these roles have not always been easy to identify.  

Authority for Executive Orders      

Most executive orders purport to execute laws passed by Congress in fulfillment of the President’s Article II duty to “make sure the laws be faithfully executed.” In essence, an executive order is a presidential statement directing how administration officials and agencies are to effectuate a duly passed federal law. In some limited cases, executive orders are based exclusively on the President’s enumerated Article II powers, including issuing pardons and commutations, directing the military, and making recess appointments.   

Presidents have always used executive orders to signal priorities and direct their administrations. The Emancipation Proclamation, the desegregation of the U.S. military, the internment of Japanese-Americans during World War II, and the pardon of Richard Nixon are all examples of executive orders.  

The Legal Effect of Executive Orders 

As previously explained, an executive order’s authority must derive from an already existing statute or a constitutionally enumerated presidential power.  

For example, an executive order that purports to create an obligation, right, or penalty outside the scope of an existing statute or enumerated presidential power would be a legislative act. This would encroach on Congress’s constitutional authority to make the law, thereby violating what is known as the Separation of Powers doctrine. Such an executive order would therefore be unlawful and unconstitutional because the President lacked authority to issue the order. 

An executive order that purports to apply a duly passed federal law or enumerated presidential power in a manner that violates the Constitution by, for instance, infringing on First Amendment speech rights or the Fourteenth Amendment’s guarantee of equal protection, would also be unlawful. In this case, while the President may have had the authority to issue an executive order, the substance of that order violates the Constitution and is therefore invalid. 

Once issued, federal agencies and officials generally treat an executive order as presumptively lawful and will begin to effectuate the order by issuing regulations, revising policies, altering enforcement priorities, and even changing content and language on government websites and publications.      

Presidential Immunity and Executive Orders 

In June 2024, the U.S. Supreme Court held in Trump v. U.S. that a President has absolute immunity from criminal prosecution for actions within his constitutional authority and at least presumptive immunity for all other official acts. The decision in Trump v. U.S. does not mean that an action becomes lawful simply because it was the action of the President. It means that the President cannot be prosecuted for his unlawful conduct. For executive orders, the consequence of this decision means that if a President were to violate a criminal law through an executive order, he could not face prosecution. The executive order itself, however, would remain illegal and therefore be invalid. Under current precedent, anyone other than the President who sought to enforce the executive order could be criminally prosecuted, assuming all the elements of the underlying crime were met. As discussed below, an executive order can also, and most commonly in these situations, be found by a judge to be unlawful even if no crimes were committed by a member of the executive branch.   

Challenging an Executive Order  

For an executive order to be invalidated, whether because the President lacked the authority to issue it or because its substance violates the Constitution, an aggrieved party must challenge the order in federal court. Challenges to an executive order can come at many stages.  

Upon issuance, a party or parties who have standing, meaning that they would be injured if the order were to take effect, can sue the President and any government agencies and officials tasked with executing the order. Such a suit would seek a declaration that the order is unconstitutional and/or unlawful and seek to enjoin the government from enforcing it. Opportunities for declaratory and injunctive relief are also available at the point that a government agency seeks to promulgate a change in regulation, policy, or enforcement in response to an unconstitutional or illegal executive order.       

A party may also challenge a regulation or policy stemming from an invalid executive order when a federal agency attempts to enforce that regulation or policy against them. In these cases, the party would assert as a defense to the enforcement action that the agency did not have the statutory or constitutional authority for its enforcement. This would not be a direct challenge to the order but rather to the actions that the agency took in response to the order. In this situation, a successful challenge may result in the agency being enjoined from enforcing its own regulation or policy but might not prevent other federal agencies from applying their regulations and policies based on the underlying executive order absent additional litigation. 

The Future of Trump’s Executive Orders 

As of this writing President Trump has signed 92 executive orders. Some have been prosaic but many have sought to radically change our constitutional and legal order, including attempts to end birthright citizenship, unilaterally freeze federal foreign aid, erase transgender people from recognition by the federal government, restrict the availability of gender affirming health care for youth in medical institutions receiving federal funding, ban diversity, equity, inclusion, and accessibility initiatives, and target lawyers and law firms that represent perceived political enemies.  

According to one tally, there are currently 126 lawsuits challenging these and various other executive orders. The outcomes of these challenges, at least some of which will be decided by the U.S. Supreme Court, will determine how successful the Trump administration may be in reshaping the federal government and presidential power.        

Executive Order, Executive Power