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Published on Wednesday, January 25, 2017

Executive orders 101

Presidential executive orders have been in the news recently, including a number of issues that are relevant to state and local governments. President Trump has signed a number of executive orders in his first days of office. President Obama, like most of the presidents that recently preceded him, issued about 300 executive orders during his term.

Through executive orders, presidents are able to direct the work of administrative agencies and implement authority granted to the president by a federal statute or the U.S. Constitution.

Executive orders are controversial because no provision of the Constitution explicitly authorizes them. Regardless, they have been used by every president (except one) since George Washington.

Executive orders, while considered to have the force of law, can’t be used to overturn laws but can be overturned by Congress.

Courts also have the power to review them. The U.S. Supreme Court has declared some executive orders unconstitutional. Perhaps the most famous example is the 1952 case of Youngstown Sheet & Tube Co. v. Sawyer. The Supreme Court struck down President Truman’s executive order directing the Secretary of Commerce to seize and control all the steel mills in the United States. The Supreme Court ruled that neither the Constitution nor the law authorized this action.

More recently, the Supreme Court reviewed the constitutionality of President Obama’s executive order allowing certain undocumented immigrants to stay and work in the United States indefinitely. The Supreme Court issued a 4-4 decision last summer which effectively affirmed a lower court ruling striking down the executive order on other grounds.

Can one president reverse another’s executive orders? Yes. For example, President Trump reinstated the “Mexico City Policy” by executive order. Since President Reagan, presidents have alternately cancelled or reinstated this policy by executive order.

(Adapted from an article by the State and Local Legal Center statelocallc.org.)

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