I had a couple of questions from my students about what is an executive order and is it “law of the land?”

The easiest way to explain it is from a workplace story.  You work at a national franchise that makes hamburgers.  The Manager comes in one day and states that hamburgers shall be flipped from the right to the left and not from the bottom.   So you do it from the right to left.  The Manager still cannot come in and declare you are no longer serving hamburgers, because that is a decision of the national corporation.  Also, the franchise in Texas has to cook it to 140 degrees and the franchise in New Mexico has to cook it to 145 degrees.  The Manager cannot change the state law regarding the temperature of the meat.

So, an executive order does not change “the law of the land”; it is simply the President telling agencies that work for the President to do what he is telling them to do.  The Orders have the “force of law” on those agencies and, thus, how those agencies deal with you, the citizen. (Article 2, US Constitution). The force of law and “the law of the land” are two different things.  The law of land, can only be determined by Congress.  (Article 1, US Constitution). Note that the US Constitution never mentions Executive Orders, it is nothing more than a function of the power granted in Article 2 for the President to oversee the agencies under the Executive branch.

Remember, we have three equal branches of government: Legislature, Executive, and Judicial.  We also have the States that have authority.  A President cannot unilaterally overturn a law enacted by Congress and signed into law by a former US President.  That said, a President can use an executive order to instruct his agencies on enforcing that law and overturning prior Presidents' Executive Orders.   In a similar way, Congress cannot simply overturn an Executive Order, but they can pass legislation that might make it difficult, or even impossible, to carry out the order.  Generally, Congress does this by removing funding.  The Judiciary can also rule an Executive Order unconstitutional or outside the authority of the President.

If you look at the text of the Executive Orders signed yesterday, they all use the phrase “this order shall be implemented consistent with applicable law and subject to the availability of appropriations.”  This statement means that the Order must still function under the Constitution and the “law of the land” enacted by Congress and can only be done if Congress has appropriated the funds for enforcement.

One thing to note is that Executive Orders are used on a regular basis for non-controversial issues, like granting Christmas Day off for federal employees.  Note that your employer was not required to give you Christmas Day off because of that Executive Order. 

Also, States are not subject to Executive Orders BUT may be affected by an Order.  For instance, a State may be denied access to funds because its laws conflict with the Executive Order.  For example – California may have state law regarding purchasing e-vehicles; an Executive Order could stop federal tax rebates for e-vehicles but can not change California's law regarding the purchase of e-vehicles.  The Executive Order could make it difficult for California to enact and enforce its law, but it cannot overturn state law.   

Citations: “President Trump – Executive Order Regarding Unpopular, Inflationary, Illegal and Radical Pactices” January 20, 2025.; Title 3 of the US Code of Federal Regulations; https://www.whitehouse.gov/briefing-room/presidential-actions/

https://www.archives.gov/federal-register/executive-orders/

http://www.presidency.ucsb.edu/executive_orders.php