How Do Presidential Executive Orders Work?

One President issues an executive order. The next reverses it. Executive orders are a powerful tool, allowing presidents to set policy without new laws from Congress. But just because a president signs an order doesn’t mean it’s set in stone. These directives often face legal challenges, especially when they impact issues like immigration. Whether you’re a business owner, a visa holder, or simply concerned about policy shifts, understanding how executive orders work — and how they can be contested with legal help — is essential.

What Are Executive Orders?

The President of the United States is empowered to issue executive orders under Article II of the U.S. Constitution. This article requires presidents to “take care” when passing laws, which is why a president will include a legal justification when passing an executive order.

Once issued, an executive order has the same force as other laws. While presidents typically use their executive power to interpret, enforce, or encourage the implementation of existing laws, they sometimes use an executive order to create new policies under the executive branch’s power.

Executive orders differ from congressional laws in that they do not go through the legislative process. Once enacted, congressional laws are more difficult to overturn and provide more permanence compared to executive orders. Unlike a congressional law or executive order, proclamations do not have legal force. Modern presidents primarily focus on using executive orders, as proclamations are more for ceremonial use.

What Issues Do Executive Orders Address?

Executive orders can address a broad range of issues, including national security, immigration, economic policy, public health, and environmental protection. While they primarily affect the executive branch and federal agencies, they can also impact state governments, businesses, and individuals, especially if they alter federal regulations.

Executive orders are not permanent. It’s typical for one president to issue an executive order and the next issuing one to reverse it. For example, President Donald Trump issued an executive order in 2017 to restrict people from majority Muslim countries from entering the United States. In 2021, President Joe Biden reversed many of Trump’s travel bans. During President Barack Obama’s term, he created the Deferred Action for Childhood Arrivals (DACA) program. Trump then attempted to end the program by issuing an executive order. The Supreme Court thwarted these efforts. Later, Biden signed his own executive order to preserve and strengthen the DACA program.

Immigration has always been a hot subject matter for executive orders. The most well-known executive order President Franklin D. Roosevelt signed was Executive Order 9066. It authorized the forced relocation of Japanese Americans to incarceration camps. U.S. President Jimmy Carter signed Executive Order 12172 that invoked the Immigration and Nationality Act of 1952. It called upon the Secretary of State and the Attorney General to enforce the restricted entry of Iranians with non-immigrant visas into the United States. However, not all immigration executive orders focus on deportation. President Harry Truman signed an executive order that put the “Truman Directive” into action, reprioritizing immigration quotas to displaced European refugees from World War II, allowing more to enter the United States.

How Are Executive Orders Created and Implemented?

The President holds significant authority over the operations of the executive branch. This includes issuing executive orders to direct federal agencies and departments to carry out duties. Executive orders allow presidents to address immediate or pressing issues — such as national security, public health, or economic crises — by directing federal agencies to take specific actions. Through executive orders, presidents can make substantial changes to federal policies, especially in areas where legislation may be stalled or where Congress has not acted.

The process of issuing an executive order usually begins with the identification of a pressing issue or the need for federal action. This can be initiated by the President, an advisor, or a department within the executive branch. Executive orders are usually drafted by the President’s legal and policy teams, often with input from relevant agencies or departments. The order must align with the President’s constitutional authority and statutory powers.

Drafting Executive Orders

Once drafted, executive orders are reviewed internally by legal advisers, agency officials, and other experts to ensure that they comply with the Constitution and existing laws. Drafting may involve consultation with the U.S. Department of Justice (DOJ) or the Office of Management and Budget (OMB) to assess legal and fiscal implications.

Reviewing Executive Orders

After the review, the President signs the executive order, making it official. Trump sparked conversation when he signed several already prepared executive orders immediately after his second term inauguration. The signed order is then published in the Federal Register, which is the public record for executive actions and official government publications. They are also added to other databases, such as the National Archives and the American Presidency Project. Federal agencies are responsible for carrying out the executive order’s provisions. Agencies may issue regulations or take specific actions to enforce the order, which may take time, depending on the complexity of the policy.

Publishing Executive Orders

Once the review process is complete and any necessary adjustments are made, the President signs the executive order, officially making it an executive action.

After being signed, the executive order is published in the Federal Register, the official journal of the U.S. government. This publication serves as the public notice of the President’s directive and makes the order legally binding. Following publication, federal agencies are tasked with implementing the executive order’s provisions. These agencies may issue regulations or take other administrative actions to enforce the order’s requirements.

How Long Does It Take for Executive Orders to Go Into Effect?

Many executive orders take effect immediately upon being signed by the President, especially when they address urgent matters or national emergencies. These orders are typically published in the Federal Register right after the signing, making them legally binding on the same day.

Some executive orders contain provisions for delayed implementation, often due to the need for further administrative planning or coordination. Delayed orders may give federal agencies time to implement necessary changes, draft new regulations, or allocate funding.

Several factors can influence the timeline of executive order implementation. Orders that address issues of national security, public health, or other time-sensitive matters are often structured for immediate effect. More complex executive orders that change or introduce long-term policies may have delayed timelines. For example, changes to federal regulations or new social programs may require federal agencies to issue guidelines, interpret existing laws, or consult with stakeholders. For example, a new executive order affecting environmental protections might require agencies to review or revise hundreds of rules before implementation can begin.

Immediate Effect vs. Phased Implementation of Executive Orders

Travel bans are often implemented immediately. These orders are typically executed in response to current events. This timeliness is necessary to address urgent national security concerns, such as preventing potential threats or addressing foreign relations issues. For instance, President Trump’s executive orders in 2017 imposed immediate travel bans from specific countries with no grace period.

Some executive orders, especially those involving broad policy changes, take time to implement in a phased approach. For example, the Deferred Action for Childhood Arrivals (DACA) program, issued under President Obama, was implemented gradually, requiring multiple stages of guidance and policy development by federal agencies.

Another example is President Biden’s executive orders reversing Trump-era immigration policies related to family separations, asylum processes, and the “Remain in Mexico” policy. These orders were implemented in phases gradually, taking several months. This is because they required broad procedural changes and the cooperation of the U.S. Department of Homeland Security and other agencies.

Can Executive Orders Be Challenged?

The singular nature of an executive order can lead to an overstepping of power by a new president. In an effort to exercise their presidential power, they may sign executive orders that are overreaching, violate a law, or are not enforceable. While lawmakers cannot veto an executive order, they can challenge it. This ability is part of the checks and balances that are built into the United States government. The ability to challenge an executive order is often used as a political tool — Republicans will challenge the executive orders of a Democratic president and vice-versa.

Executive orders can be challenged if they violate the U.S. Constitution. This is the most common reason used for challenging an executive order. Examples of this argument include:

• Violation of First Amendment rights
• Violation of the Fifth or Fourteenth Amendment
• Overreach in areas where Congress has authority

Once challenged, a court has the authority to review the executive order. The order can be blocked or altered if the court determines it is unconstitutional. The opposition must show that the order legislates or creates new laws for a challenge based on overstepping executive power. A less commonly used challenge is under checks and balances. The founders instilled a series of checks and balances when forming the United States of America. As part of this, an executive order cannot conflict with laws passed by Congress or intrude upon legislative powers.

Who Can Challenge an Executive Order?

Only those qualified can challenge an executive order. An entity or individuals must have standing to sue. They can do this by showing they are directly affected by the order.

For example, a business owner affected by new regulations imposed by an executive order can file a lawsuit arguing that the order harms their business or violates their rights. Individuals whose rights are directly impacted by executive orders, such as those affecting immigration status or healthcare, can also bring a challenge.

State governments can challenge executive orders on the grounds that they infringe upon states’ rights or violate the principles of federalism. States may challenge orders that impose federal regulations on state-run programs or interfere with state authority.

Example of an Executive Order Challenge: Travel Bans

A good example of a challenged executive order is the legal battle over Trump’s travel bans. The Muslim country travel restrictions were met with immediate opposition. Courts blocked the implementation of the executive order on the basis that it was discriminatory and violated constitutional protections against religious discrimination. The case eventually went to the U.S. Supreme Court, which ruled in favor of a revised version of the ban, allowing it to take effect with some restrictions.

The Deferred Action for Childhood Arrivals (DACA) program also faced immediate opposition. States and organizations argued against it, claiming it was an overreach of executive power. Then, Trump’s executive order to end the program faced objections. California, New York, and immigration advocacy groups challenged it in court. They argued that terminating DACA violated constitutional protections and was an overstep of presidential authority. Courts temporarily blocked the rescinding of DACA, citing procedural issues and constitutional concerns. It was also determined that Trump did not provide an adequate legal reason for ending the program.

Conclusion and Finding Legal Help

Executive orders are a key mechanism for presidential policymaking, but they come with limitations and legal uncertainties. While they allow for swift action, they also face legal and constitutional challenges that can limit their impact. Given the evolving nature of executive authority, individuals and businesses affected by these orders must stay informed. If an executive order has influenced your legal status, business, or rights, seeking professional legal guidance is the best way to ensure you’re protected and prepared for potential changes.

Visit the Super Lawyers directory to begin your search for an experienced attorney in your legal area of need.