Law & Order(s): 5 Facts About Executive Orders That May Surprise You

Donald J. Trump came in hot when he took the oath of office as the 47th President of the United States on January 20, 2025.

Within hours of his inauguration, Trump rescinded 78 of President Biden’s executive orders (EOs) and signed more than two dozen EOs of his own. Several of the orders have drawn media attention either in name or in substance—like immigration-related EO 14159, titled “Protecting the American People Against Invasion.”

Executive orders are written policy directives issued to agents of the executive branch that have the power of federal law. EOs historically were used for routine administrative matters; more recently, however, they have been used by commanders-in-chief to implement large-scale policy changes.  You may be familiar with the term “executive order,” but here are five facts about EOs that may surprise you:

1. Every American president but one has issued an executive order.

The concept of the presidential executive order dates to the beginning of our nation’s governance. In 1789, George Washington instructed heads of federal departments to “impress [him] with a full, precise, and distinct general idea of the affairs of the United States” in their respective fields. Since then, nearly every U.S. president has issued at least one executive order during his administration. The only exception was the nation’s ninth president, William Henry Harrison, who died after serving only one month in office.

One of the most famous executive orders in American history was Abraham Lincoln’s Emancipation Proclamation. Issued on January 1, 1863, the order changed the legal status of more than 3.5 million enslaved African Americans in the Confederate states. Franklin D. Roosevelt, the longest serving president in American history, issued more executive orders than any other president—a whopping 3,721, including orders which effected:

the confiscation of gold during the Great Depression (EO 6102);

the establishment of the Office of Scientific Research and Development that facilitated the Manhattan Project (EO 8807); and

the internment of millions of Japanese Americans following the attack on Pearl Harbor (EO 9066).

Other noteworthy executive orders include those used to advance civil rights, such as the desegregation of the U.S. military by Harry S. Truman (EO 9981), and Dwight D. Eisenhower’s deployment of the National Guard to enforce orders for the desegregation of public schools (EO 10730).

2. Executive orders are not laws but carry the force of law.

The Constitution gives Congress the power to enact laws—but not the president.

While executive orders do not make law, they carry the force of federal law. Sequentially numbered, they are published in the Federal Register (a daily journal that informs the public about federal regulations and actions) and codified in Title 3 of the U.S. Code of Federal Regulations (a formal collection of rules and regulations issued by the executive branch and federal agencies). 

3. The president derives authority to issue executive orders from either the Constitution or Congress.

An executive order must be issued pursuant to one of two authorities: the U.S. Constitution or Congress. Article II of the Constitution grants the president broad authority to determine how to enforce laws and otherwise manage the resources of the executive branch. Congress may also enact laws that delegate (expressly or impliedly) certain degrees of discretionary power to the president.

Presidents cite the source of their authority on the face of EOs to sidestep legal challenges that assert they are making laws rather than simply enforcing them. As a case-in-point, the preamble to President Trump’s recent immigration order (EO 14159) reads:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.) and section 301 of title 3, United States Code, it is hereby ordered…

4. Executive orders do not require congressional approval.

Presidents do not require congressional approval to issue executive orders, nor does the legislature have the authority to overturn them. Only a sitting president may overturn an existing executive order by issuing another EO to rescind it.

Congress may invalidate an executive order through legislation, but the President retains veto power. To override a presidential veto, Congress needs a two-thirds “supermajority” vote—a rare occurrence.

Congress can use its power of the purse to make implementation of an executive order difficult. It can refuse to provide funding necessary to carry out certain policy measures, essentially cutting off the EO at its knees.

5. Courts may strike down executive orders that run afoul of the Constitution or were issued without proper authority.

Executive orders are subject to judicial review and may be overturned by federal courts if found to be unconstitutional or determined to exceed the scope of a president’s authority. Legal challenges to several of President Trump’s recent EOs are underway.

A federal district judge in Washington State issued a temporary restraining order (TRO), preventing the federal government from taking any action to enforce or implement the order affecting birthright citizenship (EO 14160).  Similarly, a Washington, D.C. judge halted implementation of the order freezing federal grant, loan, and other assistance before President Trump rescinded the EO the following day.

Lawsuits have also been filed challenging the creation of the Department of Government Efficiency (DOGE) (EO 14158); the reinstatement of excepted service Schedule F, which would eliminate job protection for federal workers (EO 13957); and the order banning transgender people from serving in the military (EO 14183).

Stay Informed

Additional lawsuits are sure to follow. The scope of President Trump’s authority to issue certain executive orders and the constitutionality of the orders themselves will be tested and may ultimately be resolved by the United States Supreme Court.

Woods Rogers’ Government & Special Investigations Team continues to monitor the flurry of executive orders and the legal challenges they may present. Stay informed by signing up for future legal updates. If you have questions about the recent executive orders, please contact the author of this alert, your Woods Rogers attorney, or any member of the Government & Special Investigations team.