Megan R. Moro, Esq.
Jan 248 min read
The Role of Executive Orders in Governmental Stalemate: An Examination of Increasing Reliance on Executive Orders to Circumvent Congressional Deadlock, the Legal Limits of Executive Power
By: Megan R. Moro, Attorney at Law
I. Introduction
In the United States, the separation of powers between the legislative, executive, and judicial branches is designed to ensure a system of checks and balances. When Congress experiences gridlock or partisan stalemates, presidents often explore alternatives to pass or implement policy agendas. One of the most frequently utilized tools in such circumstances is the executive order (EO). While executive orders enable swift administrative action, they also invite questions regarding their constitutional limits, their potential to circumvent the legislative process, and the courts’ role in restraining executive overreach. This article critically examines the growing reliance on executive orders during moments of legislative deadlock, the constitutional and statutory contours that set legal boundaries on executive power, and the notable court rulings that have curtailed or overturned executive actions.
II. Historical Context and the Evolution of Executive Orders
Early Use and Constitutional Foundations
The Constitution vests the executive power in the President (U.S. Const. art. II, § 1), while also granting the President the duty to “take Care that the Laws be faithfully executed” (U.S. Const. art. II, § 3). Although the Constitution does not explicitly mention executive orders, presidents have employed written directives to government agencies since the earliest days of the Republic. George Washington issued orders to facilitate the administration of the new federal government, including directives that managed the Executive Branch and clarified policy implementation.
Expansion in the Twentieth Century
The twentieth century saw a marked increase in the number and scope of executive orders. President Franklin D. Roosevelt, for instance, issued more than 3,500 executive orders during his time in office, using them to guide the country through the Great Depression and World War II. Later, presidents from both major parties—such as Lyndon B. Johnson, Ronald Reagan, and Barack Obama—used executive orders as a means to set national policies, particularly when Congress was slow to act or was mired in partisan battles.
Modern Reliance on Executive Action
In the face of deeply polarized politics, modern presidents have increasingly resorted to executive orders to pursue policy objectives. This trend is partly a reaction to persistent legislative gridlock but also a political strategy that allows the executive to act unilaterally on issues ranging from economic policy to immigration enforcement. While effective in the short run, this reliance raises questions about maintaining the constitutional balance of powers.
III. Constitutional and Statutory Limits of Executive Orders
Separation of Powers Framework
The Framers designed a system in which each branch of government operates within its own sphere of authority. While the President wields significant power through administrative rulemaking and executive orders, there are constitutional checks—most notably, Congress’s power to legislate and the judiciary’s power to interpret the law. Presidential authority via executive order must align with either the Constitution itself or with an existing statute enacted by Congress. Executive orders cannot create new law that conflicts with or bypasses legislative action.
- Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), famously outlined a three-tier framework for evaluating presidential authority. Justice Jackson’s concurring opinion established categories for determining the lawfulness of executive actions based on whether the President acts (1) with express or implied authorization from Congress, (2) in the absence of either a congressional grant or denial of authority, or (3) contrary to the express will of Congress.
Statutory Constraints and the Administrative Procedure Act (APA)
Many executive orders direct administrative agencies to take specific actions. However, agencies must still comply with statutory mandates and procedural requirements, such as those outlined in the Administrative Procedure Act (5 U.S.C. §§ 551–559). If an executive order directs an agency to promulgate rules that exceed statutory authority or fails to adhere to proper notice-and-comment procedures, courts can invalidate the resulting regulations.
Congressional Tools for Restraint
Congress retains several mechanisms to check executive orders:
Legislative Overrides: Congress can pass new legislation that effectively nullifies or supersedes an executive order, provided it can overcome a presidential veto.
Budgetary Control: Through appropriations and funding provisions, Congress can restrict or enable the implementation of executive mandates.
Oversight and Investigations: Congressional committees can hold hearings, request documentation, and conduct investigations into the legal and practical bases for executive orders.
IV. Judicial Oversight and Notable Court Rulings
Youngstown Sheet & Tube Co. v. Sawyer (1952)
When President Harry S. Truman issued an executive order to seize steel mills during the Korean War to prevent a labor strike from hindering production, the Supreme Court ruled that he lacked the constitutional authority to do so. This decision remains central to understanding the limits of executive action, establishing that the President’s power must stem from an act of Congress or the Constitution itself.
Clinton v. City of New York (1998)
Although focused on the line-item veto rather than an executive order, Clinton v. City of New York is instructive in highlighting the Court’s stance on preserving legislative prerogatives. The Court struck down the Line Item Veto Act as an unconstitutional grant of legislative power to the President, reinforcing the principle that the President cannot unilaterally amend or repeal statutes.
Department of Homeland Security v. Regents of the University of California (2020)
Though not a direct challenge to an executive order, this case centered on the Trump Administration’s attempt to rescind the Deferred Action for Childhood Arrivals (DACA) program, which had been established through executive action under the Obama Administration. The Supreme Court held that the Administration’s rescission of DACA was “arbitrary and capricious” under the APA, illustrating that executive directives must comply with administrative law procedures.
Texas v. United States (2016)
A federal district court issued a preliminary injunction against the Obama Administration’s Deferred Action for Parents of Americans (DAPA) program, finding that the program went beyond the scope of the Department of Homeland Security’s statutory authority. The Supreme Court ultimately affirmed the injunction by a tied vote, leaving the lower court ruling in place. This case underscored the legal vulnerability of expansive executive actions that lack clear statutory grounding.
V. Increasing Reliance on Executive Orders in Stalemated Eras
Partisan Gridlock and Executive Agendas
As partisan divisions in Congress deepen, legislative compromise often proves elusive. Presidents may interpret this environment as a mandate to use executive authority more aggressively to advance policy priorities. While EOs can be efficient in tackling immediate administrative or policy concerns, they tend to lack the durability of legislation, as subsequent administrations may reverse them.
Potential for Legal Challenges
A greater volume of executive orders on high-profile issues—immigration, environmental protection, and national security—frequently leads to litigation. Opponents of these orders challenge them on constitutional or statutory grounds, and the judiciary must reconcile respect for executive authority with the need to curb unilateral overreach.
Policy Implications and Democratic Governance
Reliance on executive orders may undermine the ideal of a deliberative legislative process, prompting debates about democratic accountability. Although executive orders are public and subject to judicial review, they bypass the more transparent process of legislative debate and compromise. This dynamic raises concerns about the balance of power and the long-term health of representative governance.
VI. Conclusion
Executive orders have become a critical tool for modern presidents seeking to navigate or circumvent congressional deadlock. While they serve legitimate administrative and policy objectives, executive orders must operate within the bounds set by the Constitution, statutes enacted by Congress, and precedents established by the judiciary. Youngstown Sheet & Tube Co. v. Sawyer, Clinton v. City of New York, and recent decisions like DHS v. Regents of the University of California and Texas v. United States underscore that there are meaningful legal limits on unilateral presidential action.
The potential for executive overreach—particularly in a highly polarized political environment—reinforces the importance of maintaining robust checks and balances. In order to preserve the constitutional framework, Congress and the courts must remain vigilant. Ultimately, while executive orders can address urgent policy needs and break political stalemates, they are not a substitute for durable legislative solutions produced through the democratic process.
Bibliography
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
Clinton v. City of New York, 524 U.S. 417 (1998).
Department of Homeland Security v. Regents of the University of California, 591 U.S. (2020).
Texas v. United States, 579 U.S. (2016) (per curiam).
U.S. Const. art. II.
Administrative Procedure Act, 5 U.S.C. §§ 551–559.
Howell, William G. Power without Persuasion: The Politics of Direct Presidential Action. Princeton Univ. Press, 2003.
Kelley, Christopher S. Executing the Constitution: Putting the President Back into the Constitution. SUNY Press, 2006.
For further information or to schedule a consultation, contact Moro & Moro, Attorneys at Law 570-784-1010. Our experienced legal team is here to assist you with all your legal needs in Pennsylvania.
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