The United States Constitution. Federal law. Federal regulations. Executive orders. Individual discretion. State and local authorities of various sorts. In our system of the rule of law and federalism, there is a clear hierarchy among them.
I. The United State Constitution
The US Constitution (1989) is supreme. No laws or regulation or government action are allowed to defy the dictates of the US Constitution. This is why unconstitutional is a death sentence for any government action. On the other hand, the Declaration of Independence (1776) has no authority. It was piece of rhetoric, an announcement and justification of rebellion (e.g. “he has savaged our coasts, burnt out towns and destroyed the lives of our people). It was our nation’s founding document, but it was not our government’s founding document. There were the old Articles of Confederation, and those were replaced by the US Constitution. The Constitution changed the nature of our government—state and federal. It is the ultimate authority.
Amendments to the Constitution are part of the Constitution. They change the contents and meaning of the Constitution. They have higher standing within the Constitution than the original text, as they come later. Though difficult to do, anything in the constitution can be changed or overridden by constitutional amendment—but not by any other mechanism or authority.
Military and civilian officers in our government swear an oath to uphold our constitution. The US Constitution is the basis for our whole government.
II. Federal Laws
Though they may not violate or override the Constitution, federal laws—passed by Congress and either signed by the president or passed through Congressional override of a veto—are superior to every thing else. In fact, this is stated explicitly in the Constitution, in the Supremacy Clause (Article VI, Clause 2).
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Laws require either the cooperation of both houses of Congress and the President or an overwhelming 2/3 vote of each house of Congress. Treaties begin with the President and then go to Congress for ratification. The authority of the federal laws must overcome our system of checks and balances, but once they do they are incredibly powerful.
Laws are necessary because the Constitution cannot predict everything or settle things in sufficient detail. For example, the Constitution says we need a system of federal courts and there will be a Supreme Court. But how many other courts and how many justices and how it all will work? Well, that was set up in federal laws, and in subject to alteration by federal law. The greater ease of making laws allows the government to respond to the needs of the nation without resorting to the far greater hurdle of constitutional amendment, and to correct previous actions as well.
III. Federal Regulation
Just as the Constitution cannot anticipate and describe everything in sufficient detail to handle our needs, federal laws also are limited. They need further detail and explanation than Congress can provide—and perhaps ought to provide. Thus, we have a system of federal regulation the fill out those details. For example, what counts as pollution and what are the acceptable levels?
There is a process laid out by Congress for how federal regulations are made, in the Administrative Procedure Act (APA) of 1946. Thus the process for the administrative branch under the President to pass federal regulations was crafted by Congress. Again, checks and balances.
This APA requires delay in crafting regulations. Drafts must be published publicly, and time given for the public to comment on them. There also are procedures for rescinding longstanding regulations, and enacting and resciding federal regulations take over a year. However, new regulations can be overturned by either the President or Congress. Checks and balances, and making changes takes cooperation between the executive and the legislature—at least tacitly.
IV. Executive Action and Executive ORders
The executive branch of the federal government comprises virtually every agency, department and office that actually does or enforces anything. Almost any agency, department or office that you have heard of is part of the executive branch, and therefore under the control of the President. In some cases, the President merely appoints its leaders, in most cases the President can remove them. Heck, in most cases, the President can give them orders—though not all.
But the government is far too big for the President to micromanage every action and decision. Heck, a single store or restaurant is usually too big for its leader to micromanage every action and decision. A small chain adds layers of central leadership over branch leadership. And a larger company or conglomerate adds more layers, still. The President has to rely on layers of leadership and management and line employees to actually get anything done, be it inspecting a meat processing plant, stamping a passport, collecting a tariff or charging a hill. All of those workers at all levels should act in accordance with the Constitution, federal laws and federal regulations, but there is still leeway, discretion and decision-making.
However, discretion is the doorway to discrimination, inconsistency and unpredictability. So, most departments, agencies and offices have internal guidance or guidelines that they publish. This provides transparency to whomever is interested or potentially impacted, and addresses those issues of inconsistency and discrimination. Of course, all of this must be consistent with the Constitution, federal law and regulations.
Sometimes, the President might want to set his own guidance or guidelines. That is is what an executive order is. There might be questions of priorities or timing. There is all kinds of wiggle room and various sorts of decisions that are not set in law ore regulations. Anyone who has been responsible for implementing a plan knows that there are always a host of little decisions that add up to making a huge difference in how it works out—little things that were not accounted for in the plan. Sometimes, they were merely overlooked, and other times the planners thought it best to leave the decision until the exact particulars were known. That means leaving in the hands of the folks doing the work at the time, instead of tying their hands in advance.
The more grey areas in the law or regulations, or the more contradictions within or between different laws (or different regulations), the more room there is for executive orders. But they must be consistent with the Constitution, federal law and even federal regulation. That is what it means to be a system of law, to have the rule of law. Individuals—even the President of the United States—is bound by the law. This includes being bound by the Administrative Procedures Act about creating and rescinding regulations. No president can issue orders with the force of law, or even federal regulation. No president can override federal law unilaterally, and certainly cannot override the Constitution. Just as the President must spend the money budgeted by Congress on the uses laid out by Congress, the President cannot simply erase laws or create new ones by fiat.
Use of executive orders can be quite controversial. When there is too much to address, the president might set priorities. For example, given the limited capacity of our immigration courts, the President might prioritize the removal of serious criminals, recent immigrants or less recent immigrants. If Congress increased the resources available for our immigration courts, then everyone in our country in violation of our laws could be processed and adjudicated. But without those resources, there must be some decisions made about where to direct them. Such decisions can be controversial. But this is really no different than a local police department deciding where to position officers and which crimes to focus on. For example, which speeding or shoplifting offenses to let go, or how many resources to devote to solving a particular burglary. Many executive orders seems obviously good and righteous to some, even as they seem obviously bad and immoral to others. They are a set of consequences of democracy and election outcomes. So long as they are consistent with the Constitution and ederal law (and even federal regulation), they are within the power of the President.
V. Recent Limitations on Executive Authority
In fact, the discretion of executive branch officials has recently been diminished by the US Supreme Court. Since last years’s Loper Bright v. Raimondo ruling, our federal courts have been instructed to give less deference to regulatory and guidance decisions from executive branch officials. The courts have also, in recent years, limited the executive branch from making regulations that are literally consistent with federal law and the Constitution when it judges that an issue is so important that Congress must be actively involved in deciding it—as opposed to delegating it to the executive branch.
That is, more authority for Congress and the Courts, and less for the executive branch.
VI. What About States
States can layer on top of federal law, but cannot override it. So long as the Constitution allows the federal government to take action or regulate and area, federal law is supreme. Federal law can allow states to add, but does not always do so. There is a federal minimum wage, but states can set higher minimum wages. The FDA approves drugs for sale nationally (and under what sorts of labelling and marketing), but states cannot approve drugs in addition to those approved by the FDA.
Even federal regulations, which are enacted under the auspices of federal law and serve to clarify how the federal law will be enforced and interpreted, are supreme to state law or state constitutions. That is, in areas covered by federal law, federal law and regulation decide whether states can add additional anything, or whether federal law (and/or regulations) simply preempt state efforts.
Of course, to the extend that the executive branch has less authority to pass regulations, issue guidance or executive orders, that might give states more leeway.
VII. Really?
Well, that is how it worked last week. It is how has worked for centuries, decades, years and months (as laid out above).
Hopefully, we remain a nation of laws.