“I am president, I am not king. I can't do these things just by myself.”
Executive orders cannot make law.
In a Univision radio interview with Eddie Sotelo on Oct. 25, 2010, with regard to immigration reform, then President Barack Obama stated, “My Cabinet has been working very hard on trying to get it done, but ultimately, I think somebody said the other day, I am president, I am not king. I can't do these things just by myself.” President Obama clearly did not understand the truth of what he then said, since his line soon after became, “I've got a pen to take executive actions where Congress won’t…”, and he subsequently issued executive orders by which he attempted to “do these things just by [him]self.” This is not to say Obama was the only President to issue orders that supersede the authority vested in the office by the Constitution; far from it. Obama was simply one of the only Presidents in recent history to admit openly that it was wrong to do so.
If we are to understand executive orders, whether right or wrong, we must first understand the role and responsibilities of the President as set out by the second article of the Constitution. One of the most important duties is recited in the President’s Oath of office:
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” - United States Constitution, Article II, Section 1
The President is, to the best of his ability, required to uphold the Constitution, and not only to uphold it, but to “protect and defend” it. Oh, would that any recent President take this Oath with the gravity it deserves.
The President is also Commander in Chief of the Armed Forces:
“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;” - United States Constitution, Article II, Section 2
Though the Constitution does not actually make provision for a standing army, we must acknowledge that we now have multiple standing branches of armed forces that all fall under the President’s leadership as the highest ranking military officer.
Next, the President has the power to make treaties, provided two thirds of the Senate approve (United States Constitution, Article II, Section 3). As well, the President has the responsibility of appointing ambassadors, “other public Ministers and Consuls”, Supreme Court Justices, and all other “Officers of the United States” whose method of appointment are not directly addressed by the Constitution (United States Constitution, Article II, Section 3).
Lastly, and perhaps most importantly, “he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”
It should be understood, especially from this last statement, that the President is not only Commander in Chief of the armed forces, but the President is also the Chief Law Enforcement Officer for the United States. With these responsibilities in mind, we can understand executive orders to be necessary for commanding the military, making treaties, appointing “Officers of the United States”, and for enforcing “the Laws” of the United States. What an executive order does not and may not do is create new law nor violate existing law. The power to make law is granted by the Constitution to Congress and Congress alone. Therefore, executive orders apply to the Federal Government and may establish administrative policy, create treaties, appoint officers, or direct how laws are to be enforced.
Unfortunately, there is still much misunderstanding around executive orders and even the President’s powers and responsibilities and the Constitution itself. For instance, in an article titled Executive Orders 101: What are they and how do Presidents use them? from Constitution Daily, we find the statement that “Laws can also give additional powers to the President” (https://constitutioncenter.org/blog/executive-orders-101-what-are-they-and-how-do-presidents-use-them/). This is untrue. The President has only powers granted by the Constitution, as does Congress. Congress can not create laws that grant the President additional powers any more than they can create laws granting themselves additional powers. The Tenth Amendment limits the government to powers explicitly granted by the Constitution. I have written extensively about the Tenth Amendment in a previous article:
Despite all this, many may even believe that the President can simply issue an executive order to make things happen that Congress is unwilling or unable to accomplish. Executive orders have been issued, though perhaps not explicitly named so, by every President who has held the office. So, what actually is an executive order? According to the Staff of House Committee on Government Operations, 85th Congress, 1st Session:
Executive orders and proclamations are directives or actions by the President. When they are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law.... In the narrower sense Executive orders and proclamations are written documents denominated as such.... Executive orders are generally directed to, and govern actions by, Government officials and agencies. They usually affect private individuals only indirectly. Proclamations in most instances affect primarily the activities of private individuals. Since the President has no power or authority over individual citizens and their rights except where he is granted such power and authority by a provision in the Constitution or by statute, the President’s proclamations are not legally binding and are at best hortatory unless based on such grants of authority.
https://sgp.fas.org/crs/misc/RS20846.pdf - page 1
This is one of the best and most constitutionally accurate definitions I’ve found. Notice how specific this definition is:
an executive order must be founded on the authority granted the President by the Constitution
they may, if derived from the Constitution or statute, have the force and effect of law
they are generally intended to govern actions of Government officials and agencies
they are not directed at private individuals
even presidential “proclamations” have no legally binding power over individuals
Though the Constitution says nothing about executive orders themselves, they are founded on the authority the Constitution grants to the President. Provided an executive order is used within the strictures of the Constitution, they may have the force of law. This is not surprising, since it is the President’s job to enforce the law of the land.
This also is where we run into some trouble with executive orders. For instance, President Obama’s DACA order stood in contradiction to U.S. immigration law and thus should have been considered null and void. Likewise, when President Biden ordered OSHA to mandate that businesses require employees to receive shots for COVID-19 or face fines, this was the President attempting to enforce an edict on individual citizens by circumventing the Constitution and the powers of his office. Not only are such orders null and void, they represent a serious dereliction of duty. As the President’s swearing in requires the President to take an oath to uphold the law, issuing executive orders that contradict the law violates said oath, and in so doing, should open the President to impeachment. This holds true for any President, no matter the party he represents nor the policy he wishes to implement. The President must uphold the law of the land, or he is in violation of his oath of office. After all, the President is the Chief Law Enforcement Officer of the United States; he is not a king.