In his legal memorandum, “The Use and Abuse of Executive Orders and Other Presidential Directives”, Todd Ganziano clears up many misunderstandings of what executive orders are and why they are within the presidents authority.
Executive orders have been called by other names and have been executed a bit differently over time, but what is consistent is that they are written declarations or instructions rather than delivered orally. The most common kind of executive orders are those that are issued in the course of carrying out the constitutionally defined responsibilities of the president – commander in chief, head of state, chief law enforcement officer and head of the executive branch. A president is free to manage his duties in whatever ways he sees fit, as long as he is not breaking any laws in doing so. That some presidents have issued more and some less is more revealing of management style than it is on their use or abuse of power. As government has grown over time, it is not surprising that there have been an increased number of management oriented executive orders simply because there are more departments, people and activities to manage. Increases during war are also not surprising given the presidential roles of commander of the armed forces and head of foreign affairs.
Many executive orders are within presidential authority based on statutory law rather than the authority given by the US Constitution. These orders can be more easily limited by Congress. If Congress disapproves of how a president wields power derived from legislation, they can push back with more legislation that takes that power away, voiding the executive order if not all of its consequences.
Sometimes executive orders fall into the grey area where power is shared between the president and some other branch of government such as Congress. Here, it is often historical precedent that determines whether the order is considered within presidential authority or not. Congress can contest any order which falls under its authority and the Supreme Court can overturn unlawful orders.
Where it gets more difficult is when an executive order takes power or rights away from the people. This sort can remain uncontested for a long time even though it may be clearly unlawful because nobody can or will take it to the courts. For an this sort of executive order to be contested, or any law for that matter, by the people, some individual(s) must have standing — that is, be materially damaged by the directive. Right now, there are several of these kinds of executive orders that are of concern. While they may not pass muster in court, they have not yet been applied in such a way that any person has standing.
If the executive branch of government does not evolve as the nation evolves, the role of the president will become increasingly irrelevant. On the other hand, because power does what power can do, it is critical to keep watch on executive orders that increase the power of the presidency whether that power is leveraged yet or not.