When can the president use executive orders?
About this video
The video explains that executive orders are a normal part of the constitutional system when a law leaves the president discretion to choose among lawful options. They become improper when they go beyond what the statute permits, because then they start to look like lawmaking. The key test is whether the order is consistent with the statute Congress enacted.
You'll be able to
- explain when an executive order is a proper use of presidential power.
- explain why an executive order that goes beyond a statute looks like lawmaking.
- apply the 'consistent with the statute' test to an example.
Key words
- Discretion
- Freedom to choose among several options that the law allows.
- Statute
- A law passed by Congress.
- Executive order
- A presidential instruction telling executive officers how to use their discretion in carrying out the law.
- Legislative power
- The power to make laws, which belongs to Congress.
Transcript
Executive orders are perfectly normal parts of our constitutional system when they are used properly. Often, Congress passes laws and the laws have gaps or the laws are broad. In other words, there are multiple ways one could carry that lot into execution. What an executive order does is it tells an agency, or it tells an executive branch officer, I, the President, want you to exercise your discretion as follows in this way.
In other words, if the statute leaves discretion, it allows for Option X, Y, or Z. All possible options to execute this law. The president can pass an executive order that says, I want you to do X as long as it's consistent with the law. There's nothing wrong with the executive order. That's just the president announcing how the president intends to carry the law into execution.
That's why when you actually look at many executive orders, they'll have provisions that say, if consistent with applicable law or to the extent consistent with applicable law, many executive orders say that, so far so good. The problem with executive orders is when the president, through an executive order, tries to do something that goes beyond what the statute permits.
At that point, the executive order starts looking like lawmaking. It starts looking like legislative power. But the real limit here is whether the executive order is consistent with the statute that Congress enacted or goes beyond that statute; tries to do something new. Only if it tries to do something new and goes beyond the statute, is improper.
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