Are Executive Orders Law? A Case Study on the Limitations of Presidential Powers and Authority

The Short Answer

No, they are not in and of themselves law.

The Middle Answer

Executive Orders may carry the “weight of law,” but only insofar as:

1.  They’re directed to a department or other government entity under the Constitutional authority of the President of the United States of America…


2.  The orders themselves do not violate the Constitution itself or any local, state, or federal statute which lawfully derives its authority from the Constitution.

For example, the President can direct one or more of his department heads to conduct their affairs in a certain manner.  He cannot direct a department head to violate the Constitution in any manner, nor can he direct the affairs of any entity not under his direct administrative authority as proscribed and limited by the Constitution.

The Long Answer

There is no constitutional provision or statute that explicitly permits executive orders.  The authority to do has been assumed by all Presidents, from George Washington on, from Article II, Section 1, Clause 1 of the Constitution, which simply states:  “The executive Power shall be vested in a President of the United States of America.”  It has widely, though errantly been assumed Article II, Section 3, Clause 5 cements this power, but when we actually read this clause, it only states, “he [the President] shall take Care that the Laws be faithfully executed.”

Article II, Section 3, Clause 5 does NOT give the President any power or authority to create law.  It’s a restriction on his power, not permission.  It simply means that the President and his actions while in office must conform to all laws, beginning with, but not limited to the Constitution of the United States of America.  All additional legislation, provided it legally adheres to the Constitution, is also binding to the President, his staff, and all departments beneath his office, including all Amendments, which themselves are integral components of the Constitution itself.

Thus, does the President, Congress, or the Supreme Court have any right, power, or authority to direct any government agency or group within a that agency to violate the Fourth Amendment protections?

No, they don’t.

While the office of the Presidency is quite powerful, our Constitution places a tight reign on both the limit and scope of those powers.  Let’s see what powers the President does have, by examining those listed for the President in the Constitution of the United States of America, in Article II, Sections 2 and 3:

1.  Commander in Chief of the Army and Navy of the United States (self explanatory)

2.  Commander in Chief of the Militia of the several States, when called into the actual Service of the United States

Note:  U.S.C., as well as both federal and Supreme Court decisions, has limited the term “Militia of the several States” to apply only to the National Guard, and has excluded any application to either any other militias mentioned in State Constitutions or to the armed general populace

3.  May require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices

Note:  Put simply, he can ask his department heads “what’s going on?”

4.  Shall have the Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment (self-explanatory)

5.  Shall have power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur

Note:  Our President can NOT make a treaty without a 2/3 Senate concurrence, and he must get their advice first.  Thus, any “Gun Ban Treaty” is both illegal and unenforceable without 2/3 Senate concurrence.

6.  Shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein other otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the the President alone, in the Courts of Law, or in the Heads of Department.

Note:  This one requires some dissection.  All senior officers of the various executive departments, of which their are 15, such as the Department of Defense, all key sub-departments (such as the Department of the Air Force), all ambassadors, public Ministers and Counsels (representatives of foreign governments), Supreme Court Justices, and a few others categories require 2/3 advice and consent of the Senate.  The second part allows for the appointment as a civil or military office by procedure outlined in law.  Thus, military officers are given a “Presidential Commission” by procedure, not directly by the President himself.  By “inferior Officer” they’re referring to lower levels, such as the Undersecretary of the Air Force and the Chief of Staff of the Air Force.

7.  The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Note:  In January, 2013, a federal court indicted President Obama because Obama made appointments during a temporary recess of the Senate while the Senate was still in session, instead of between sessions.  Those whom he appointed remain in office, illegally.

8.  He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.

Note:  First, the State of the Union address is a requirement, not an option.  Second, it’s a duty for him to recommend necessary and expedient measures to Congress for their consideration.  Obama utterly failed in that duty.  He instead used it as a chest-pounding, “LOOK AT ME!  Look what I have done!  I have created FIRE!” type of speech.

9.  He may, on extraordinary Occasions, convene both Houses, or either of them…

Note:  The Japanese bombing of Pearl Harbor was one such occasion.  The 9/11 attacks were another such occasion.  There have been few other such occasions throughout the course of American history.

10.  …and in Case of Disagreement between them, with Respect to Time of Adjournment, he may adjourn them to such Time as he shall think proper.

Note:  If the two houses, during an “extraordinary Occasion,” disagreed on the time of adjournment, this clause gives the President the authority to set a time.  However, he can only do so if the two houses disagreed on a time.

That’s IT, ladies and gentleman.  This is ALL the President is authorized to do with respect to administering the duties of his office.

So who has the Constitutional power and authority to create law?  Article 1, Section 1:  “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

Note:  The term “legislative” means “power or authority to create law.  Please note the President (executive branch) is not mentioned.

I’d like to point out two additional sections which are quite relevant:

Article II Section 4:  “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Some of Obama’s “high crimes” (felonies) and misdemeanors are being presented to the U.S. Supreme Court today (February 15, 2013).  Among them are Obama’s failure to register for the United States Selective Service System.  This is a felony, and disqualifies anyone who commits this felony from holding any position in the United States Government.

In summary:  Are Executive Orders Law?

Short Answer:  No.

Medium Answer:  They carry the weight of law, but he has no authority to either create law or violate the law.

Long Answer:  Hell no.