Executive orders are not legislation in the traditional sense, but they do have the force of law under certain circumstances.

Here are the key points to understand about the legal status of these kinds of orders:

Legal Authority

Executive orders derive their authority from two main sources:

• The U.S. Constitution, specifically Article II which grants executive power to the President.
• Statutory authority delegated to the President by Congress.

Force of Law

Executive orders have the force of law when they are:

• Issued pursuant to constitutional or statutory authority.
• Published in the Federal Register.
• Codified in the Code of Federal Regulations.

Limitations

While these orders can have legal effect, they are subject to important limitations:

• They can be overturned by federal courts if found to lack constitutional or statutory basis.
• Congress can pass legislation that makes it difficult or impossible to carry out an executive order, such as by removing funding.
• A sitting president can revoke, modify, or supersede executive orders issued by previous administrations.

Differences from Legislation

Unlike laws passed by Congress, executive orders:

• Do not require congressional approval.
• Cannot be directly overturned by Congress (though Congress can pass conflicting legislation).
• Are more easily changed or revoked by subsequent presidents.

Judicial Review

Like statutes and regulations, executive orders are subject to judicial review. Courts may overturn these orders if they:

• Exceed the president’s constitutional authority.
• Conflict with existing laws.
• Violate constitutional rights.

While executive orders are not identical to congressional legislation, they do carry legal weight within the scope of presidential authority and can significantly impact federal operations and policy implementation. Their status as “law” is contingent on their adherence to constitutional and statutory limits.

Notable examples of executive orders that have been overturned by courts:

Franklin D. Roosevelt Era

In 1935, the Supreme Court struck down five of President Franklin D. Roosevelt’s executive orders related to the National Industrial Recovery Act.

This included:

• Executive Order 6199
• Executive Order 6204
• Executive Order 6256
• Executive Order 6284a
• Executive Order 6855

The Court found these orders unconstitutional as they exceeded the president’s authority.

Harry Truman’s Steel Seizure

In the landmark 1952 case Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court invalidated Executive Order 10340 issued by President Truman.

This order had directed the Secretary of Commerce to seize and operate most of the country’s steel mills during the Korean War. The Court ruled that Truman lacked the constitutional or statutory authority to seize private property in this manner.

Bill Clinton’s Labor Order

In 1995, a federal appeals court overturned Executive Order 12954 issued by President Bill Clinton.

This order had attempted to prevent the federal government from contracting with organizations that employed strike-breakers. The court ruled that the order conflicted with the National Labor Relations Act.

Donald Trump’s Travel Ban

Parts of President Trump’s Executive Order 13769, which temporarily banned entry to the U.S. for citizens of several Muslim-majority countries, were initially stayed by federal courts in 2017.

However, in 2018, the Supreme Court ultimately upheld a revised version of the travel ban in Trump v. Hawaii.

Other Examples

• In 1935, the Supreme Court invalidated executive orders issued by President Roosevelt related to the transport of petroleum in Panama Refining Co. v. Ryan.
• Courts have also struck down executive orders that exceeded statutory authority granted by Congress or violated constitutional rights.

These cases demonstrate that while executive orders can be powerful tools for presidents, they are subject to judicial review and can be overturned if found to exceed presidential authority or violate existing laws.