Myth #21: Executive Orders Can Modify Law

This is the Twenty-First Myth in the series: 25 Myths of the U.S. Constitution.

Note: These articles later were updated and combined into my first book: 25 Myths of the United States Constitution.

By Douglas V. Gibbs

Executive Orders are not specifically mentioned in the U.S. Constitution. Many Americans falsely believe that executive orders, in addition to the functions of modifying how an executive branch department or agency does its job (rule change), or to issue a proclamation, can modify existing law. Modifying law, however, would need to accompany the authority to make law, and that authority rests solely with the Legislative Branch. Therefore, any executive order that modifies the law is unconstitutional. Article I, Section 1 of the U.S. Constitution grants to the Congress all legislative powers, therefore, the Executive and Judicial branches cannot make law, repeal law, strike down law, or modify law. Only Congress can.

Executive Orders are nothing new, for George Washington issued several Presidential Proclamations. Executive Orders and Proclamations, once again, are not law, but they do sometimes have the effect of statutes. A typical modern Proclamation might declare a day to be in someone's honor.

The Emancipation Proclamation had a broader effect, but did not free the slaves. The Emancipation Proclamation was not a law. It was a proclamation. It did change the course of the war, proclaiming the Civil War to be all about slavery, which encouraged the European Nations to step back in regards to their support of the Confederacy.

In line with that, we have often seen executive orders instruct the government to do no business with a country we are at war with, or to declare a day an official. . . fill-in-the-blank. In the political world, Executive orders are said to be subject to judicial review, and can be declared unconstitutional (not that the courts have that kind of power - see Myth #4). Executive orders hold no power over law, so States can simply refuse to follow unconstitutional executive orders if they so wish. Congress can refuse to follow executive orders that attempt to modify law, as well, since the Legislative branch alone is tasked with making law. Problem is, Congress has not been functioning in accordance with the U.S. Constitution, and has been allowing the executive branch to wield power it is not constitutionally afforded.

-- Political Pistachio Conservative News and Commentary