Executive orders take two forms: These orders can require action on the part of the federal government and, at times, can direct inaction by the government. Significantly, nowhere in the Constitution is there any reference to the president’s right to issue “Executive Orders.” Likewise, there is no express grant of authority by Congress to the president to issue such orders. However, the arguable basis for executive orders can be found in several parts of the Constitution: Article II, Section 1 of the U.S. Constitution reads, in part, “The Executive power shall be vested in the President of the United States of America”; Article II, Section 2 states: “The President shall be the Commander in Chief of the Army and Navy of the United States…;” and Article II, Section 3 directs that, “The President shall take care that the laws be faithfully executed…” Yet, Article II, Section 2, which lists the powers of the President, does not include the powers to write laws.1
As for the power to write laws, the Executive is to “faithfully” execute those laws passed by Congress as provided by Article I, Section 1, which vests all legislative power (the power to write and pass laws) with Congress—the only process by which this can be accomplished is outlined in Article I, Section 7. An executive order that implements a policy in direct contradiction to the law is null and void unless the order can be justified as an exercise of the president’s exclusive and independent constitutional authority.2
‘Youngstown’: Seminal Case
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