Quora Question: Do Executive Orders Trump Existing Law?

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Answer from William Murphy, professor of American history:

Can an executive order of the president cancel any legislation or statute of the legislature? No.

Executive orders are instructions from the president to subordinate agencies of the executive branch. Executive orders apply only to the employees and directors of those agencies. Executive orders can set policy priorities for those agencies, or they can instruct those agencies on how to interpret laws that affect their mission.

Most executive orders have very little impact on most people's lives. Occasionally, however, there are significant and far-reaching executive orders.

In 1948, Harry Truman issued an executive order desegragating the U.S. armed forces. He could do this because as commander-in-chief the president decides official policy for the armed forces, and can issue orders that uniformed commanders have to obey.

In the 1960s, Lyndon Johnson ordered federal agencies that issue contracts to private businesses to refuse contracts to any business that could not demonstrate that it did not discriminate on the basis of race in hiring, promotion and salary decisions. Because there are thousands of businesses that bid for goverment contracts, this led to many businesses adopting non-discrimination policies so they would not be shut out of those contracts. However, Johnson did not order those businesses not to discriminate; he ordered the agencies under his authority not to do business with companies that did.

During the Obama administration, much was made of his executive orders on immigration. These were two separate orders, one relating to children who had been brought to the U.S. illegally as minors, and one applying to adults who were here illegally but had family members who were here legally.

While Republicans called this executive amnesty, the orders fell far short of that. What Obama did was order federal prosecutors and immigration officials to prioritize undocumented immigrants who committed criminal acts over all other groups. Since there are eleven million illegal immigrants but Congress allocates only enough money to deport about 400,000, prosecutors have to exercise discretion in deciding who they should go after. Obama's orders instructed prosecutors and immigration officials to place the children covered by the first order and the adults by the second at the very back of the line for deportation, and authorized members of these groups to apply for work permits so they could work legally for two years, after which time their status would be reviewed again. Existing immigration law authorized both directed prosecutorial discretion and the issuing of temporary work permits, but Congress argued that the scope of Obama's actions were broader than the law intended and that the issuing of work permits required a case-by-case review which Obama's program failed to adequately perform. In short, political rhetoric aside, the conflict over these orders was not about Obama creating new law; it was about the Obama administration and Congress interpretting existing law differently.

If Congress objects to an executive order, it has several options. In most cases it can pass legislation that directly overrides the order, or that strips the president of power to issue orders of that type in the future, although such legislation would require either the president's signature or support of two-thirds of both Houses of Congress to override a veto. Failing that, it can sue the president, challenging his interpretation of the law and the authority he was claiming under it, asking the judicial branch to weigh in and settle the conflict. This is what Congress did on Obama's immigration orders, and at least in regard to the second of the two orders (the so-called "DAPA" program) the courts have mostly sided with Congress's interpretation of the law and suspended Obama's order so that it was never implemented (and now probably never will be.)

An important thing to understand about executive orders is that every single president issues them; it is part of the normal functioning of the executive branch and would be difficult or impossible to implement policy without them; but the opposition party will always portray executive orders as examples of presidential overreach, accuse the president of trying to make laws on his own without consulting Congress, and generally suggest that the use of these orders is the beginning of a dictatorship.

For the most part, that is political theater which both parties engage in when the other party controls the White House, and has little grounding in reality. There are many, many limits on the scope and effectiveness of executive orders.

Above all else, they can not ever overturn or nullify existing laws passed by Congress. At most, they can highlight a difference in interpretation of existing law between Congress and the president; and since the judiciary has final word on the interpretation of the laws, it can settle any dispute between the other two branches, and its rulings are final.

All of this is my very, very long way of saying, in answer to this question, "No."

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