So the inauguration of now-president Joe Biden happened and depending on where you live you either let out that breath you’ve been holding for like 4 straight years or you’re like… Really angry. Or you’re both relieved and angry. Emotions are complicated in 2021. Anyway you’re probably hearing about Biden signing a bunch of day one executive orders. So what are executive orders, and are they laws?
The issue of executive orders is a codified process within the American government. It’s not like that scene in The Office where Michael just declares bankruptcy and believes it has now happened. Just because the president told you to go get them a coffee doesn’t mean it’s an executive order–even though it’s an order that came from the executive.
What makes executive orders distinct from just being told to do something is the legal bearing. Executive orders do have legal weight–which you probably expected given how much buzz they generate in the news. You can really broadly consider the invocation of executive orders as “the executive branch is making a law now.” That’s why it’s not uncommon to hear people calling the use of executive orders as an abuse of power, since it kind of sidesteps Congress. If you’re vaguely familiar with the branches of American government, laws make their way through the legislative branch of government–the Senate and House of Representatives. So for the executive branch to just unilaterally make new laws would be counter to the intended function of Congress. Which is confusing when you realize that executive orders do have the effect of law.
In case you were curious, Franklin D. Roosevelt is known for issuing the most executive orders at 3,522. William Henry Harrison has the record low of 0. Mostly because he was in office for like a month.
Executive orders are also more limited in scope than laws, at least in theory. They’re intended to influence internal affairs of the US government, like a very strong way to set priorities or dictate how laws can be enforced (rather than instituting the enforced law itself). They’re sent to agencies within the government, so it’s like when someone gives you a bunch of different things to do, but someone else tells you in what order to do them.
Because executive orders are unilateral and don’t require a bunch of people in Congress to compromise, they can come out a lot faster too. For that reason, they’re often used for managing emergencies or anything else that requires immediate/short-term action (like wartime).
While sweeping policy changes aren’t normally made through executive order, it has happened before. Like Executive Order 9066, which basically paved the way for the American concentration camps that interned Japanese, German, and Italian Americans.
You might be wondering why we would give so much power to the president, on paper. The ability for a single individual (only the president can invoke an executive order) to unilaterally make wide-sweeping changes seems like… A lot. It is, and we generally just kind of hope that presidents adhere to the “spirit” of the ability to invoke executive orders. As we learned with the Trump Administration, eschewing norms is a great way to get people to go “wait that’s illegal!” but then immediately looking it up and going “wait that’s technically legal and it probably shouldn’t be.”
So then how are executive orders limited in their scope? For starters, they’re subject to judicial review. Which means they can be overturned for being unconstitutional and stuff. Executive orders can expire or be otherwise augmented and revoked by future administrations. Congress can also negate executive orders by passing legislation against them. Otherwise, they can suffocate them to death by denying necessary funding to carry out the order at all. To get the first thing to work, Congress probably has to be in 2/3 agreement. Why? Because the president can veto legislation–meaning they can veto any law that undoes their own executive order.
Further Reading: What Is Judicial Review?
We’ve been talking a lot about presidents, but what about people who aren’t? Go see here.