Originally posted by vivify
just how far can an executive order go? For example, if Obama wanted to legalize gay marriage with an executive order, could he have done it? If Trump wanted to make Paul McCartney's birthday a national holiday, could he do it? Could the president declare a new national anthem or a new state bird (instead of the eagle)?
I'm just wondering if anyone ca ...[text shortened]... rned by Congress (though they can be declared unconstitutional). Any help would be appreciated.
Executive orders are not legislative actions. In other words, they can only be about how the law is enforced or how the agencies operate.
Legalizing gay marriage (assuming Obergefell was never decided): No. Marriage recognition is a state function. But he could tell the IRS to start recognizing same sex partnerships from a federal perspective (I believe; this is a bit of a murky one).
The President can create a federal holiday. He runs the administrative agencies so if he wants to given them off for a day, that's his call. He cannot force states or private companies to recognize the holiday.
The National Anthem was adopted by federal legislation and so I'd imagine it could only be changed by legislation, though the President could, for example, order the military to play a new song instead at ceremonies.
When it comes to the military and military structure, the President as, commander in chief, has a lot of latitude. The President cannot declare war, but short of that, the President can do pretty much anything militarily. There is a War Powers Resolution that requires reporting to Congress within 60 days after a military incursion (and withdrawal unless Congress consents) but it's of questionable enforceability.
The President can also order around administrative agencies by executive order. The President can't, for example, legalize pot, but he can order the DOJ and US Attorneys to stop enforcing federal pot laws. He cannot stop states from enforcing pot laws. He also cannot create new crimes or create sentences beyond their statutory maximums.
The President cannot make something a crime, but he can order the DOJ to start enforcing already on-the-books crimes more strictly. He cannot make immigration policy, but he can order the USCIS to strictly enforce immigration policy and he can exercise the discretion that federal law often gives him.
All in all, executive orders are about exercising the latitude has in enforcing the law (which is substantial), but the President cannot create new laws.
Clear as mud.