The last few weeks have seen a flurry of executive orders. As the national debate rages about the appropriateness of the orders, it is important to understand what an executive order is and its limitations.

Executive orders are directives issued by the President to manage the federal government in its enforcement of laws. They derive from powers vested in the President according to Article II of the U.S. Constitution. They can also be issued as directives to manage the staff of the executive branch as they carry out their duties.

Executive orders began to be officially numbered and catalogued in 1907. Prior to that date, orders were simply known by the subject matter. Not all orders are published if they have no general applicability or legal effect. Additional memos and letters may also be issued less formally to various departments and staff. These communications are not considered executive orders.

Executive orders are not mentioned in the Constitution. But clearly, the President as head of the Executive Branch can direct the various departments in how to enforce the law or carry out executive constitutional powers. The ability is limited, according to the Supreme Court, to executive powers supported by Article II or Congressional statute.

Historically the use of executive powers has varied. George Washington had only one in the entire eight years he presided. He simply directed department heads to keep him regularly informed. John Adams had 1. Andrew Jackson had 12 including the infamous Indian removal act. Andrew Johnson averaged over 20 per year for a total of 79. U.S. Grant issued 217 as part of reconstruction after the Civil War. Teddy Roosevelt issued a whopping 1,081 and Wilson issued 1803. But the king of executive orders was FDR. Roosevelt issued on average 307 per year for a total of 3,721. Modern Presidents have been much more judicious in usage. Kennedy had 214. Johnson issued 325 mostly around Civil Rights legislation enforcement. Reagan had 381. Clinton 364. Bush 291 and Obama 276. Trump’s first term yielded 220 and Biden penned 162. In the first two weeks of Trump’s second term he has issued 53.

The only President to fail to issue an executive order was Harrison. It is important to note that most executive orders are proposed by heads of the federal agencies before they are issued by a President. Presidents can issue, amend, and revoke orders. Executive orders remain in force until they expire, are cancelled or revoked. While some may require Congressional approval most deal with enforcement of existing law or deal with emergencies.

Executive orders are subject to judicial review and may be overturned as illegal, not supported by existing statute, or unconstitutional. As a defense, Presidents are careful to specify which law or constitutional provision the executive order addresses. As a check on executive authority, Congress can also nullify or change executive orders by the passage of law. This is subject to veto and sets up the potential need to override an executive veto by a 2/3 vote. Congress can also refuse the funding needed to carry out an order.

Executive orders can be ceremonial or symbolic. Presidents cannot create new laws, but can use executive orders to signal policy priorities or political will. They may specify what action a President is willing to take to see that laws are faithfully executed.

Perhaps the most famous order issued by a President is the Emancipation Proclamation that freed slaves in states rebelling against the Union. Several other executive orders have been enacted as “war powers” of the commander in chief. Harry Truman tried to federalize steel mills during the Korean War, but lost when the Supreme Court ruled that he tried to make a law rather than enforcing or clarifying, Truman was more successful in using executive orders to desegregate the military. FDR infamously used executive order to set up Japanese internment camps. Eisenhower used executive order to send troops to Little Rock to integrate the public schools.

And so it goes. Each administration using its power to either protect rights or restrict based on their interpretation of law and priority within their jurisdiction. Ironically, one of the strongest critics of the use of executive order has been the Heritage Foundation (sponsor of Project 2025). They have charged former Presidents of using the action to “make laws” outside of Congress.

As an act of citizenship, pay attention to executive orders. Decide if the order is in regard to a power outlined in Article II. Decide if the order is in regard to the enforcement of a law already in federal statue. Decide if the order is an infringement on the responsibility of Congress to pass laws. Familiarize yourself with key judicial review opinions bounding executive reach in order to evaluate the scope of executive orders.