Retired U.S. Army Judge Advocate David Dalition served in the Army for 25 years, starting out as a trial attorney before working his way up to staff judge advocate. David Dalition also earned a Master of Laws from Columbia in constitutional law. He was the director of the advanced constitutional law program at the United States Military Academy, West Point, New York. He also worked with commanders regarding legal matters including the implementation of executive orders.
An executive order is issued by the President of the United States to implement his or her will through the executive branch of government. The president does this backed by powers given by the U.S. Constitution, specifically Article II, which grants the president the functions of commander in chief, head of state, head of the executive branch, and chief law enforcement officer. He is granted a sole constitutional responsibility to ensure laws are faithfully executed. Presidents since George Washington have done so through executive orders.
After a president issues and signs an executive order, the White House sends it to the Office of the Federal Register where it is numbered and published in the Federal Register. Because it has the force of law, it is also codified under Title 3 of the Code of Federal Regulations.
As the president has wide latitude accorded by the U.S. Constitution to issue executive orders, they do not require approval from Congress. In addition, Congress cannot simply pass legislation to overturn such an order. However, it may pass legislation that makes it difficult to execute orders such as by cutting funding. It is also important to note that executive orders can only be used to execute powers the president already has. They cannot be used by a president to give himself or herself new powers. The U.S. Supreme Court has overturned executive orders outside the president’s power.
