Executive Orders aren’t unconstitutional on their own.
The president can do meaningless gestures in an Executive Order, like declare a happy birthday to a foreign head of state or something, and that’s not unconstitutional.
The president can also exercise the inherent constitutional powers of the office through executive order, too: grant a military medal to somebody, tell executive branch employees that they have Christmas Eve off, provide for a system of classifying state secrets, etc. Those might have real effects, but so long as it’s the exercise of power that the presidency actually has, there’s nothing unconstitutional about that.
Then the president can also exercise the powers given by Congress: tell the EPA to start a rulemaking process, declare a public health emergency and invoke some of the powers under the procedures previously defined by Congress, etc. If the powers involved were granted by Congress, and the power itself was not unconstitutional, then there’s no problem there.
The big issue is that a lot of people misunderstand when an executive order is performative and has no legal effect, or when an executive order merely directs an agency to do something with legal effect. That agency’s actions need to be evaluated for legality, but the executive order itself does nothing, except communicates the president’s preferences to that agency in a public way. The president could just as easily call up that agency head by phone and say the same thing, and wouldn’t even need to publish that order.
It’s not the procedure that’s unconstitutional. It’s the actual contents and substance of the orders that are probably illegal.
Executive Orders aren’t unconstitutional on their own.
The president can do meaningless gestures in an Executive Order, like declare a happy birthday to a foreign head of state or something, and that’s not unconstitutional.
The president can also exercise the inherent constitutional powers of the office through executive order, too: grant a military medal to somebody, tell executive branch employees that they have Christmas Eve off, provide for a system of classifying state secrets, etc. Those might have real effects, but so long as it’s the exercise of power that the presidency actually has, there’s nothing unconstitutional about that.
Then the president can also exercise the powers given by Congress: tell the EPA to start a rulemaking process, declare a public health emergency and invoke some of the powers under the procedures previously defined by Congress, etc. If the powers involved were granted by Congress, and the power itself was not unconstitutional, then there’s no problem there.
The big issue is that a lot of people misunderstand when an executive order is performative and has no legal effect, or when an executive order merely directs an agency to do something with legal effect. That agency’s actions need to be evaluated for legality, but the executive order itself does nothing, except communicates the president’s preferences to that agency in a public way. The president could just as easily call up that agency head by phone and say the same thing, and wouldn’t even need to publish that order.
It’s not the procedure that’s unconstitutional. It’s the actual contents and substance of the orders that are probably illegal.