An executive order is any legal decree by the President of the United States that is effectively law,[note 1] but can be overwritten by either Congress,[note 2] the Supreme Court, or any succeeding presidential administration. Presidents however are limited as to what they can decree, as it must be in accordance with federal law, and is therefore subject to judicial review. A big problem with executive orders is that they can be overturned by succeeding administrations, as is seen by Trump's purging of anything even remotely related to Barack Obama.
The President's power to create and enforce executive orders are based off of Article II of the United States Constitution, which gives the POTUS wide authority to determine how laws are enforced and to what degree they are enforced.[note 3] They also derive from Acts of Congress that delegate to the President some degree of lawmaking power, called "Acts of Delegation". It should be stressed, as it was above, that this doesn't give the President carte blanche power to rule by decree, and the executive orders of the President are limited in scope and are subject to judicial review.
That said, executive orders are still ripe for abuse, such as Executive Order 9066, which was the executive order that enabled Japanese American internment during World War II. Given the time it was given, it is perhaps unsurprising that the courts ruled in favor of the legality of this otherwise blatantly unconstitutional order[note 4] in the Supreme Court case Korematsu v United States (1944). [note 5] However, this decision was overruled in Trump v. Hawaii (2018).
- Technically, executive orders lay down how to enforce a law.
- By making a new law that supplants the order in question
- This is based off of a generous interpretation of Article II, since Article II of the Constitution doesn't explicitly allow for executive orders, but neither does it deny them, although it does implicitly allow for executive orders, given that it enables the executive branch leeway in how to enforce the law.
- The reason that it is unconstitutional being that it violates the so-called "permission" of the writ of habeus corpus, which outlaws detainment without being formally accused of a crime except for in cases of invasion or insurrection. While the Empire of Japan was a force to be reckoned with, the situation did not result in anything meeting the technical criteria for the writ of habeus corpus to be dispelled, and a lot of these Japanese-Americans were US Citizens, fully loyal to the United States, which made the order a blemish on FDR's career.
- Although the Court merely restricted itself to the validity of the executive order at hand, ignoring the issue of the detainment of people without due process.
- Rebecca M. Patton, MSN, RN, CNOR, FAAN; Margarete L. Zalon, PhD, RN, ACNS-BC, FAAN; Ruth Ludwick, PhD, RN-BC, CNS, FAAN (13 November 2014). Nurses Making Policy: From Bedside to Boardroom. Springer Publishing Company. p. 94. ISBN 978-0-8261-9892-1.
- "How Trump is undoing the Obama legacy" - Washington Post
- John Contrubis, Executive Orders and Proclamations, CRS Report for Congress #95-722A, March 9, 1999, Pp. 1-2
- Chester James Antieau; William J. Rich (1997). Modern Constitutional Law: The states and the federal government. West Group. p. 528. ISBN 978-0-7620-0194-1.
- Opinion of the Court at Findlaw.com
- "Korematsu, notorious SCOTUS ruling on Japanese-American internment, is finally tossed out." — The New York Times