Executive Orders

An executive order explains how a president or governor plans to do their job. Executives have many responsibilities and limited resources, and an executive order sets their priorities. An executive order can help clarify what laws and policies the executive thinks are the most important and how the executive will carry them out.

Only a president or governor can issue an executive order. That’s because they lead the executive branch of government. Their job is to fulfill responsibilities given to them by the legislature and the constitution. There are three branches of government at both the state and federal level:

• Executive, which carries out, or “executes” law.
• Legislative, which makes law.
• Judicial, which settles legal disputes and explains what the law means.

The United States President leads the federal executive branch. At the state level, a governor leads the executive branch.

No, an executive order is not exactly the same thing as a law. Executive orders express the executive’s instructions for carrying out the law. Only the legislature can pass laws, and the judiciary can interpret laws when settling disputes. (These interpretations are called “case law” or “common law.”)

An executive order does not allow anyone to break the law. But executive orders can result in new rules and regulations—which resemble laws and may even have penalties for violators. Such rules and regulations, though, must fall within the scope of existing law.

If there is disagreement about whether an executive order is faithful to the law, the judiciary decides.

No, an executive order does not take away or give you rights. However, it can change the government’s priorities, which can in turn have an impact on your life. For example, an executive order may tell agencies to hire, fire, or reorganize workers who provide services. These changes could make it easier or more difficult to access those services.

Yes. Nearly all presidents going back to George Washington have made executive orders, as have nearly all Texas governors since the 1950’s.

There hasn’t always been a clear definition of “executive order” at the state level. Earlier Texas governors may have used “proclamations,” a similar tool, to do things that might now be addressed through executive order—for instance, calling a special legislative session.

If there is disagreement about whether an executive order is valid, the judiciary decides. Historically, there are a few factors that courts might consider.

Factors that support validity of an executive order:

• Express constitutional authority: An executive order is likely valid if it is based on a power that the constitution explicitly gives the executive. For example, a presidential executive order granting pardons would likely be valid because Article II the United States Constitution clearly says the president can pardon people for federal crimes.
  
  Likewise, a Texas governor's executive order for an emergency lawmaking session outside of the normal schedule would likely be valid because Article IV of the Texas Constitution says that the governor can call the legislature to meet on “extraordinary occasions.”

• Statutory authority: The legislature can pass laws that give the executive power to take certain actions.

  For example, Congress passed a statute that allows the president to designate new national parks. An executive order establishing a new national park would likely be valid because it falls squarely within the power granted by statute. The closer an executive order matches the authority clearly given in the statute, the more likely it is valid.

  The Texas governor can likely also issue an executive order based on either a state or federal statute. For example, Texas Executive Order RP 72 gave guidelines for how Texas would manage money received under the federal American Recovery and Reinvestment Act, which provided stimulus funds during the Great Recession.

• Legislative approval: Sometimes the executive acts first and the legislature approves later. If the legislature votes and approves an executive order, the order is more likely valid – and may even become unnecessary because the new statute takes over. For example, in 1933, President Franklin Roosevelt issued an executive order against hoarding gold. Soon after, Congress backed up the executive order by passing the Gold Reserve Act.
  
  Likewise, a series of Texas executive orders (e.g., GA-40) that barred COVID vaccine mandates were issued “subject to legislative action.” The Texas legislature later passed a law that contained similar restrictions.

Factors against validity of an executive order:

• Violates the constitution or a statute: An executive order that conflicts with the constitution or a statute is likely invalid.
• Uses powers reserved only for the legislature: Some powers belong only to the legislature. For example, the United States Constitution says that only the legislature can set the federal budget. An order that directs how money is spent within the budget Congress sets may be valid, but an order that tells the Treasury to make payments outside of that budget would likely be invalid.
• Goes beyond statutory authority: An order is likely invalid if it stretches a law farther than the legislature intended. For example, Congress passed a law in 1856 saying that the executive can set the rules for getting a passport. However, in 1958, the Supreme Court in Kent v. Dulles struck down an executive order that required passport applicants to swear they were not communists, saying the order went beyond the legislature’s intent.

There may be. An executive order doesn't create new law, but it does have the force of law behind it. It details how the executive wants to carry out existing law, including any constitutional powers the executive has. Unless a court has said an executive order is invalid, and the executive accepts that ruling or loses all appeals, there may be consequences for violating an executive order.