What Is an Executive Order?

We often see executive orders mentioned in news reports, but many people don’t know what an executive order is or on what authority it rests. Executive orders have been issued since the founding of the country.  While recent presidents have signed many executive orders during their tenures, we should not see this as a modern phenomenon. George Washington himself issued eight executive orders. Throughout our history, each president has signed, on average, 345. 

An executive order is a directive issued by the president that provides guidance on the execution of laws enacted by Congress or manages the resources and personnel within the Executive Branch. It is not a law but carries the force of law (1). The source of this authority is found in Article II of the Constitution, which outlines the powers and limitations of the Executive Branch. Although the Constitution does not mention executive orders per se, authority to issue them is generally accepted as a power of the Executive. However, they cannot override the Constitution or federal laws and can be repealed by a future president (2).

An essential limitation on executive authority is the power of Congress. Congress is granted the power to pass laws and manage the purse; it also has the authority to restrict how the Executive Branch executes the law. This is especially important today, as Congress has established many laws, particularly during the Watergate era, to ensure due process throughout the federal government. This means that the president is not empowered to exercise dictatorial control of the Executive Branch, but rather must follow the provisions of laws written by Congress. Congress can overturn an executive order by creating a law doing so. 

Another essential limitation on executive orders is the Judiciary. Whether the Supreme Court or lower courts, the Judicial Branch has the authority to decide whether an executive action is legal and constitutional. The Judiciary can issue a temporary restraining order to pause the enforcement of an executive order, and can overturn it if it is deemed unconstitutional or unlawful. If the Executive Branch does not follow the directives of the Judiciary, its officers can be subject to legal repercussions, and lawsuits can be awarded in favor of those affected.

Courts have struck down executive orders in many instances — such as in Trump’s first term, when a federal appeals court determined that the Trump administration did not have the authority to issue an executive order withholding federal funding from “sanctuary cities” and upheld Congress’ constitutional power to set the rules for federal grants (3). 

Approximately 250 lawsuits have been filed since January 20 requesting that the courts intervene and stay various executive orders (4).

The President does not have unlimited authority to issue executive orders. The Judiciary is already intervening to decide on the constitutionality and legality of some. This is how the system is designed: checks and balances by and on the three branches of government. “Measures that end up weakening checks and balances often come cloaked in the guise of necessary reforms,” according to New York Times Magazine writer Amanda Taub (5).

What should alarm us is a Congress or Judiciary that neglects its responsibility to operate as a check on the Executive Branch.

Notes

1. “5 Facts About Executive Orders That May Surprise You,” Publications and Alerts, Woods Rogers Law Firm, February 4, 2025.
2. Christopher Anders, “What Is an Executive Order and How Does It Work?” February 4, 2025.
3. Eric Kashdan and Maha Quadri, “What Are Executive Orders and How Do They Work?” Campaign Legal Center, January 31, 2025.
4. Maggie Haberman, Alexandra Ostasiewicz, John Pappas, James Surdam, and Irineo Cabreros, “Why Trump Is Signing So Many Executive Orders” (Video), New York Times. The New York Times Company, April 29, 2025.
5. Amanda Taub, “The Game Theory of Democracy,”  New York Times Magazine, New York Times Company, October 29, 2024.
6. Jack Landman Goldsmith and Bob Bauer, “The Trump Executive Orders as ‘Radical Constitutionalism,’” Op-Ed., The American Enterprise Institute, February 3, 2025. This is an additional source.