Although the topic of executive orders is not a novel one for lawyers or law students, seemingly those who pay attention to the general news have heard more about them since the advent of the Trump Administration than ever before. In fact, presidential executive orders began under George Washington, so they are as old as the republic. One’s view of any given order might depend on one’s own political leanings, but it is worthwhile to gain an understanding of what an executive order can and can’t do, and why a president – or governor, since they also issue executive orders – would promulgate one.

The president derives powers from one of two sources: Article II of the U.S. Constitution, or an enactment by Congress, i.e., a law, that grants authority to the president or an executive agency. Hence, for an executive order to be valid, it must pertain to a power granted in Article II or to authority delegated by Congress. One express authority granted by the Constitution is its provision naming the president as “commander-in-chief of the Army and the Navy of the United States, and of the militia of the several states, when called into the actual service of the United States[.]” With this authority the president can make significant policy decisions regarding military personnel; for example, President Truman’s order to integrate the armed forces in 1948. Congress too has authority regarding the military: first, it has the general spending power that lets it appropriate funds and tie restrictions to those appropriations; second, among its enumerated powers in Article I, section 8, is “To make rules for the government and regulation of the land and naval forces[.]” Under this latter power, Congress has adopted the Uniform Code of Military Justice.

One power a president does not have is to repeal or amend an act of Congress. The Constitution is clear on the enactment of laws, as you may have observed upon watching a favorite episode of Schoolhouse Rock. The president may approve a bill, veto it, or do neither, in which case it passes without his signature or, if Congress is not in session when the time limit to sign or veto expires, it dies by a “pocket veto.” Nowhere does the Constitution allow the president to unilaterally change a law. So, in today’s controversy, President Trump’s executive order that purports to alter the protections given to Internet content platforms by section 230 of the Telecommunications Act, added by the Communications Decency Act in 1996, should amount to nothing. In the order, the president aims to direct agencies to alter their interpretations of the section. Whether this is so will depend on the actions taken by those the order intends to govern and how courts act on any lawsuits that result.

Like the president, state governors issue executive orders, and likewise, their orders must be based on authority conferred by the state’s constitution or by a grant of power by the state’s legislature. In response to the COVID-19 pandemic, governors across the nation have declared states of emergency and issued executive orders that close businesses and impose other restrictions. In North Carolina, Governor Cooper’s authority to issue these orders drives from the North Carolina Emergency Management Act, adopted by the North Carolina General Assembly. The General Assembly derives its power to adopt the act from the state’s inherent police power, which allows it to adopt laws to govern society and protect the welfare of its citizens.

Executive orders are important tools, but they do not allow governance by executive fiat. They must be grounded in sound principles applying constitutional and legislative authority.