What Are Executive Orders? What Are Their Limits?

An executive order is one way the President of the United States can change the nation's policies. But there are limits as to how far such orders can go.

As history has shown, executive authority can be used in many ways. Here's a quick summary of what you need to know.

A Way for Presidents to Set Policy

For most national policy changes to occur, Congress must pass a law. An executive order is a way of sidestepping the legislative process of the federal government (at least in a limited way). Legal support for this executive power comes from Article II of the U.S. Constitution. These presidential proclamations carry the force of law.

It might help to first explain in the broadest possible terms. We have a tripartite system of government. Congress passes laws, the executive branch enforces and executes those laws, and the judicial branch oversees disputes regarding the law. Presidents, as the head of the executive branch, can set policy for all agencies under their authority. Because the federal government is so large and plays such a massive role in the lives of citizens, however, this power to set policy is not small.

Executive orders are a tool to set policy for the federal government and businesses that receive government contracts. These orders can steer the direction of federal agencies under the executive branch. The National Security Administration, for instance. Importantly, this includes the president's role as Commander-in-Chief (more on this below). The president can use an executive order to implement policies for the federal government even when faced with opposition from Congress. However, an executive order cannot violate existing federal law.

Pivotal Executive Actions in U.S. History

From George Washington to modern presidents, executive actions have shaped the nation. Some major executive actions have sparked debate among Democrats, Republicans, and other political parties, highlighting their impact on the balance of power within the federal government and the broader lawmaking process. You might be surprised at how broad this power can be. Still, all of the below were executive orders enacted as part of the president's power to conduct foreign relations, enforce immigration law, or act as Commander-in-Chief.

• The Proclamation of Neutrality (1793): Issued by President George Washington. This order declared the United States' position of neutrality in the ongoing conflict between France and Great Britain.
• Lincoln’s Emancipation Proclamation (1863): Issued by President Abraham Lincoln during the Civil War. This order declared all slaves in Confederate states free. Note that it only did so for states that had left the Union, so it set the emancipation of slaves as a goal of the war effort.
• The New Deal (1930s): President Franklin D. Roosevelt's initiatives like the Civilian Conservation Corps and Social Security were established through executive action (although legislation played an important role in some parts, too).
• Japanese American Internment (1942): Issued by President Franklin D. Roosevelt During World War II. This order led to the internment of Japanese-Americans.
• Desegregation of the Armed Forces (1948): Issued by President Harry S. Truman. This executive order abolished racial segregation in the U.S. military.
• Deferred Enforced Departure (DED) (1990): Issued by President George H. W. Bush. This order allowed certain Chinese Nationals to remain in the United States due to instability in China. This was not a unique EO. For example, President Joe Biden issued a DED executive order for Lebanese nationals on July 26, 2024.
• Deferred Action for Childhood Arrivals (DACA) (2012): Issued by President Barack Obama. This order allowed certain undocumented immigrants who arrived as children to defer deportation and obtain work permits. Note that because it was an EO, the legal status for DACA recipients couldn't change, but immigration enforcement could be deferred through executive action.
• Travel Ban (2017): Issued by Donald Trump. This order aimed to restrict entry into the United States from several predominantly Muslim countries.
• Leaving and rejoining the Paris Climate Agreement (2019, 2021): Issued by Presidents Biden and Trump. These orders involved the international accord aimed at addressing climate change. Presidents can end, adjust, or continue executive orders at their discretion.

Limits on Executive Orders

While the White House often leverages these actions to bypass Senate deliberations, they remain subject to scrutiny and documentation in the Federal Register. They can also be deemed unlawful by federal courts. Judicial review is critical to ensure the separation of powers. In fact, the Supreme Court determined during the Korean War that executive orders must fit within a certain sphere of power and cannot simply defy Congressional intent.

Executive actions have the most legitimacy when the president acts with the implied or express authority of Congress. However, executive orders may still legally shape policy if the law or Congress has been silent on an issue.

Because Congress is rarely silent on major issues, executive orders are most common in areas where the president has been granted discretion by Congress. Regardless of the president's relationship with the federal legislature, executive orders will only allow a very small policy window in which to make changes. With every new president’s use of executive orders, their power and reach are tested in different ways.

Related Resources:

• What Is the War Powers Act? What Does It Require? (FindLaw's Law and Daily Life)
• Trump's Executive Order on Election Integrity: Is There Evidence of Voter Fraud? (FindLaw’s Law and Daily Life)
• President Obama's Executive Order: 5 Ways to Improve Cybersecurity (FindLaw's Technologist)