
Every four years when the United States of America gets a new president, the first couple weeks after the inauguration are filled with numerous of Executive Orders to push forward their agenda. This year is no different, with President Trump signing dozens of executive orders in the first week of office. These orders affect nearly everything from immigration to oil to federal spending.
The most common questions I hear are “Can he even do that?” and “what is an executive order?” The concept that a sitting president can sign an order and enforce it without a vote in congress can understandably raise alarm bells, especially when the orders impact our employment, our healthcare, and the broader economic system.
An executive order does not require the same requirements of legislation passed by Congress. Yet, executive orders carry the force of law and can be challenged in court when it violates the U.S. Constitution. While the power to issue executive orders is not explicitly stated in the Constitution, it is derived from the president’s role as the head of the executive branch. The two primary sources of presidential power related to executive orders are found in Article II, Section 1 and 3, of the U.S. Constitution, which outlines the powers of the President.
Despite the seemingly broad powers granted to the president, luckily, executive orders are not without limits. In 1952, the Supreme Court issued a landmark decision on presidential powers relating to executive orders in Youngstown Sheet & Tube Co. v. Sawyer, also known to many as the “Steel Seizure Case.” Justice Black wrote for the majority, stating “the President’s power to see that the laws be faithfully executed refutes the idea that he is to be a lawmaker.” In his concurrence, Justice Jackson stated a three-part test for analyzing conflicts between presidential and congressional powers, defining the limits of the president to issue executive orders.
Under the test, the president’s powers are at their strongest when Congress has given the president authorization to act either directly or implied, basically providing the president a “permission slip” to execute an executive order. When a president acts without permission or denial from congress, generally, they must rely solely upon the powers granted by the Constitution. However, as Justice Jackson stated, there is a “zone of twilight” where the President and Congress may have concurrent authority. In this case, any actual test of power will use the importance of the events at hand and factors that are difficult to estimate, instead of using abstract theories of law. Lastly, when the President takes measures that are incompatible with the expressed or implied will of Congress, his powers are at the lowest. Here, the President can only rely upon their constitutional powers minus congressional power over the matter in question.
Outside of the zones of power, the checks and balances system plays an additional role, ensuring the orders are in compliance with the Constitution. For example, Congress has the authority to basically overrule an executive order by passing legislation that overrides or limits the effects of an executive order. Additionally, the courts have the authority to stay enforcement, which halts the implementation of an order, or overturn an order that is unconstitutional.
There are already many legal challenges to Trump’s executive orders. As of January 29, 2025, there have been five cases filed in court, challenging the constitutionality of the executive order revoking birthright citizenship. In one of the cases, the judge issued a temporary restraining order against the executive order. Additionally, there have been numerous of challenges against the executive order establishing the “Department of Government Efficiency” (DOGE), arguing the order violates the Federal Advisory Committee Act. This Act bars the delegation of decision-making authority to private citizens without public access. Other executive orders have been challenged on violations of the First Amendment and the Fifth Amendment’s Due process clause. These include the orders that ban transgender individuals from serving in the military, the housing of transgender inmates, the punishment of sanctuary cities and states and other orders impacting our civil liberties.
With the President’s executive order power expanding based on the zone it falls under, and the inconsistency of the current Supreme Court following established precedent and tests for constitutionality, it is becoming a gamble of knowing which orders will be ruled unconstitutional, even if there is a strong basis to do so. With this said, it is imperative to stay up to date with the current orders, especially due to impact they have on our livelihood.