What is an Executive Order?

Following the inauguration of Donald J. Trump for his second term as President of the United States (“POTUS”), we have heard a great deal about “Executive Orders” issued from the White House. One is left with the impression that Mr Trump spent his first week in office doing little more than signing a veritable avalanche of these instruments. But what is an “Executive Order”? Is it a law? Does it have any legal effect? Is it open to challenge?

The answer to these questions is more complex than might at first sight appear, simply because there are different types of Executive Orders, exercising (or purporting to exercise) different (supposed) powers, those powers having different (putative) sources.

An Executive Order has been defined as “a signed, written, and published directive from the President of the United States that manages operations of the federal government”.[1] It is the most formal of the three types of instruments commonly issued with presidential authority, the others being “Proclamations” (generally containing decisions or decrees with respect to holidays, commemorations, federal observances, and trade), and “Administrative Orders” (which may take the form of memoranda, notices, or correspondence, requiring that the addressee act, or refrain from acting, in a specified way).[2] All such instruments are published in the Federal Register – the equivalent of what is known as the Government Gazette in other parts of the Anglosphere – and both Executive Orders and Proclamations (but not Administrative Orders) are numbered consecutively.[3]

The nearest equivalent to an Executive Order, in most Commonwealth countries which have retained the basic features of the Westminster system of government, is an Order in Council – that is, an order issued in the King’s name, by the monarch or his viceregal representative, on the advice of the executive government.

Is an Executive Order a Law?

This question continues to be vigorously debated in the US, although the debate is apt to generate more heat than light. One camp vociferously maintains that Executive Orders cannot be considered laws because, in accordance with the constitutional division of powers, only the legislative branch (i.e., Congress), not the executive branch (i.e., the presidency), can make laws. The other camp insists, with equal passion, that if something looks like a law, tastes like a law and smells like a law, it is a law. In truth, this debate is semantic rather than substantive.

On the one hand, some Executive Orders plainly are laws, albeit in the nature of subordinate (i.e., delegated or secondary) legislation. In Commonwealth jurisdictions, subordinate legislative instruments promulgated by the executive government are usually called “regulations”, but in the US this term is generally reserved for regulations issued by a department or agency of the government. If an Act of Congress empowers POTUS to issue directives “with the force of law”, this generally takes the form of an Executive Order.

There are even some Executive Orders which have the effect of laws, although issued without congressional authority. The starkest examples occur when POTUS is exercising his authority, under section 1 in Article II of the US Constitution, as:

Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

Hence, in Hamdi v. Rumsfeld,[4] the US Supreme Court (“SCOTUS”) held that the detention of (so-called) “enemy combatants”, captured in Afghanistan, “for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’” which POTUS, as commander-in-chief, is empowered to authorise.

Perhaps the most famous example of an Executive Order issued by a US President in the exercise of his powers as “Commander in Chief of the Army and Navy of the United States” was the (so-called) “Emancipation Proclamation” issued by President Abraham Lincoln during the American Civil War on 1 January 1863 (although styled and commonly referred to as a “proclamation”, it was actually an Executive Order). This had two operative effects: first, to provide that, when slaves escaped – either by fleeing to Union lines or through the advance of Federal troops – they became “then, thenceforward, and forever free”; and secondly, to allow such slaves to “be received into the armed service of the United States”. It also required the executive branch, including the Army and Navy, to “recognize and maintain the freedom of said persons”.

This immediately released from bondage an estimated 3.5 million of the estimated 4.0 million African-American slaves. Although not immediately effective in all parts of the Union, it became an important step towards ending slavery, and presaged the adoption of the Thirteenth Amendment, which made slavery and involuntary servitude unconstitutional “except as a punishment for a crime”. Perhaps surprisingly, the Emancipation Proclamation never became the subject of a judicial challenge, although entirely incompatible with SCOTUS’s infamous decision in Dred Scott v. Sandford;[5] a decision which the future chief justice, Charles Evans Hughes, called the Court’s “greatest self-inflicted wound”,[6] and which has been described as standing “first in any list of the worst Supreme Court decisions”.[7]

However, there are also a great many Executive Orders – perhaps the majority of them – which do no more than exercise, or give effect to, existing laws. These may be laws existing within the Constitution, created by Acts of Congress or subordinate legislation authorised by Acts of Congress, or the Common Law. Again, the starkest examples occur when POTUS exercises his power to give directions to officers of the civil service, or to remove them from office. As Chief Justice Taft – himself a former US President – said in Myers v. United States (speaking for the whole of SCOTUS):[8]

The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President, alone and unaided, could not execute the laws. He must execute them by the assistance of subordinates. This view has since been repeatedly affirmed by this Court. …

As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that, as part of his executive power, he should select those who were to act for him under his direction in the execution of the laws. The further implication must be, in the absence of any express limitation respecting removals, that, as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible. It was urged that the natural meaning of the term “executive power” granted the President included the appointment and removal of executive subordinates. If such appointments and removals were not an exercise of the executive power, what were they? They certainly were not the exercise of legislative or judicial power in government as usually understood.

… In the British system, the Crown, which was the executive, had the power of appointment and removal of executive officers, and it was natural, therefore, for those who framed our Constitution to regard the words “executive power” as including both. Unlike the power of conquest of the British Crown, considered and rejected as a precedent for us …, the association of removal with appointment of executive officers is not incompatible with our republican form of Government.

Do Executive Orders have Legal Effect?

Whether an Executive Order is or is not a law is a rather barren question. The critical issue – at least in any jurisdiction with a written constitution, where the exercise of legislative or executive power is vulnerable to challenge before an independent judiciary – is whether the Executive Order has legal effect: that is, whether it will be upheld, and (where necessary) enforced, by the courts.

Typically, this calls for three enquiries: first, whether the power to make such a directive is vested in the person or body who made it; secondly, whether the directive infringes any legal constraint on that power; and thirdly, whether the manner in which the power was exercised contravenes any mandatory procedures.

I. Sources of Power

In order to answer the first enquiry – whether POTUS has the power to make such a directive – it is necessary to identify a positive source of that power. Generally speaking there are only two possible sources recognised under US law: “The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself” (per Black J., delivering the opinion of the Court, in Youngstown Sheet & Tube Co. v. Sawyer)[9]. Very occasionally, there may be a third possible source – a rule or regulation (however described) issued by a department or agency of the government – but this, in turn, depends on the existence of a congressionally delegated power to make subordinate legislation, and a valid exercise of that power.

However, whilst the power must in all cases be traced back to a constitutional or legislative source, the grant of power need not be express, and in most instance it is not. As we have already seen, the power may be implicit in the position of POTUS as “Commander in Chief”; as the person in whom the Constitution vests “Executive power”; and as the person upon whom the Constitution places responsibility to “take care that the Laws be faithfully executed”.

Historically, SCOTUS has taken an expansive approach regarding the implied executive powers of POTUS. In Myers v. United States,[10] the Court reached the (perhaps surprising) conclusion that, while the President’s power to appoint senior officials is qualified by a requirement for “the Advice and Consent of the Senate”, the power to dismiss such officials is not subject to any such restriction.

Likewise, in Seila Law LLC v. Consumer Financial Protection Bureau,[11] Roberts CJ (delivering the opinion of the Court) said:

Under our Constitution, the “executive Power” – all of it – is “vested in a President,” who must “take Care that the Laws be faithfully executed.” … Because no single person could fulfill that responsibility alone, the Framers expected that the President would rely on subordinate officers for assistance. Ten years ago, in Free Enterprise Fund v. Public Company Accounting Oversight Bd.,[12] we reiterated that, “as a general matter,” the Constitution gives the President “the authority to remove those who assist him in carrying out his duties,”… . “Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.”

The President’s power to remove – and thus supervise – those who wield executive power on his behalf follows from the text of Article II, was settled by the First Congress, and was confirmed in the landmark decision Myers v. United States … .

We therefore hold that the structure of the CFPB violates the separation of powers. We go on to hold that the CFPB Director’s removal protection is severable from the other statutory provisions bearing on the CFPB’s authority. The agency may therefore continue to operate, but its Director, in light of our decision, must be removable by the President at will.

The same conclusions arguably apply to POTUS’s powers in relation to treaties with foreign nations, as the Constitution requires the approval of a two-thirds majority in the Senate for POTUS to make a treaty, but is silent as to the process for withdrawing. In Goldwater v. Carter,[13] SCOTUS declined to adjudicate on the validity of President Carter’s withdrawal from a treaty with the Republic of China (i.e., Taiwan) despite the absence of Senate approval.

II. Restrictions on Power

As to the second enquiry – whether an Executive Order infringes any legal constraint – the most significant constraints are those contained in the Constitution itself, and especially the (so-called) Bill of Rights, an expression which strictly refers only to Amendments One to Ten, but is loosely applied to include some later amendments which also operate to protect individual rights and liberties.

An example is the Fourteenth Amendment, clause 1 of which relevantly provides:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

This first sentence establishes what has become known as “birthright citizenship”. It has always been accepted that this does not, indeed cannot, apply to everyone whose nascence happens to take place on US soil: for instance, children of foreign diplomats stationed in the US, children of prisoners of war interned in the US, or children of enemy combatants occupying US territory. But the full implications of the qualifying words, “and subject to the jurisdiction thereof”, have never been explored.

President Trump’s Executive Order 14160, entitled Protecting the Meaning and Value of American Citizenship and signed on 20 January 2025, seeks to exploit this ‘loophole’ in two specific circumstances: where a person born more than 30 days after promulgation of the Executive Order is not the natural child of a father who is a US citizen or a lawful permanent resident, and the mother was present in the US at the time of birth either:

• unlawfully; or
• with a temporary status, such as a student visa, work visa, tourist visa or under the Visa Waiver Program.

In each instance, the intention of the Executive Order is to place such children outside the purview of Amendment XIV, clause 1.

This provocation has been taken up by the attorneys-general of (at last count)[14] some 24 states, as well as the American Civil Liberties Union, the Asian Law Caucus, and various other immigrant and asylum-seeker rights groups.[15] On 23 January, Judge John C. Coughenour of the United States District Court for the Western District of [the State of] Washington granted an injunction temporarily restraining enforcement of the Executive Order, describing it as “blatantly unconstitutional”.

Executive Orders may also be challenged for infringing Acts of Congress. But, in this context, a subtle yet fundamental distinction must be drawn. If the power exercised by POTUS is a power granted by Act of Congress, then the power can only be lawfully exercised according to relevant statute. If, however, the power is one granted to POTUS directly by the Constitution – including POTUS’s implicit powers as “Commander in Chief”, as repository of “Executive power”, or based on POTUS’s responsibility to “take care that the Laws be faithfully executed” – Congress is unable to cut down those powers or detract from their untrammelled exercise.

For instance, President Trump’s Executive Order 14168, entitled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” and signed on 20 January 2025, has been challenged by a transgendered prison inmate, not only as violating the “due process clause” (Fifth and Fourteenth Amendments), discriminating against transgender individuals on the basis of sex and gender identity (Fifth Amendment), and contravening the protection against “cruel and unusual punishments” (Eighth Amendment), but also as being inconsistent with the Rehabilitation Act of 1973 and the Administrative Procedures Act of 1946.[16] To the extent that the Executive Order constitutes an exercise of POTUS’s inherent constitutional powers, it is doubtful whether the challenge for inconsistency with the Rehabilitation Act or the Administrative Procedures Act is sustainable, although the challenge may have greater force to the extent that it concerns the exercise of a statutory power to relocate inmates or change the circumstances of their incarceration.

III. Proper Exercise of Power

As in other Common Law jurisdictions, the US has an extensive jurisprudence regarding the proper exercise of administrative decision-making powers. Viable grounds for challenge are not unlike those which exist elsewhere: for instance, failure to apply a mandatory process for exercise of the power, exercise of the power in bad faith or for an improper purpose, failure to take into account relevant considerations, taking into account irrelevant considerations, exercising the power according to a preconceived policy or without considering the merits of the case at hand, exercising the power otherwise than in accordance with natural justice, or exercising the power irrationally (that is, so unreasonably that no reasonable decision-maker could have reached the same conclusion).[17]

However, this jurisprudence is limited – almost exclusively – to administrative decisions made by governmental departments or agencies, and not to Executive Orders and other decisions made at a presidential level. There are, broadly, two reasons for this.

First, the Constitution’s vesting of powers in POTUS is largely unfettered. With a few very specific exceptions – such as the need to obtain Senate “Advice and Consent” for high-level appointments, and two-thirds Senate approval for entering into treaties – there are no mandated Constitutional procedures for the exercise of POTUS’s powers. As the nation’s elected chief executive, POTUS is answerable only to the electorate – not to the judicial branch of government – for his good faith (or lack thereof), the propriety of his purposes, the relevance of his considerations, the application of his policies, and ultimately the reasonableness (even rationality) of his decisions as chief executive.

Secondly, as discussed above, when it comes to the exercise of POTUS’s express and implied administrative powers, Congress is unable to cut them down or detract from their untrammelled exercise.

If Congress has conferred on POTUS a specific power – for example, the power:

• to declare a “National Energy Emergency”;[18]
• to designate a “Foreign Terrorist Organization” or “Specially Designated Global Terrorist”;[19]
• to delay the commencement of the Foreign Adversary Controlled Applications Act to a specific digital application (such as TikTok);[20]
• to declassify previously classified documents (such as those relating to the assassinations of President John F. Kennedy, Senator Robert F. Kennedy and the Reverend Dr. Martin Luther King, Jnr.);[21] or
• to declare a “National Emergency” justifying the use of military personnel and resources[22]

– then any statutory constraints on the exercise of that power must be respected. If (to take a purely hypothetical instance) the power to designate a “Foreign Terrorist Organization” could only be exercised by POTUS on the recommendation of the State Department, then such an Executive Order would be a nullity if no such recommendation had been received.

Beyond this, however, there are only very limited circumstances in which an Executive Order can be challenged for inconsistency with an Act of Congress, unless the Executive Order goes so far as to authorise (or require) conduct which would be per se illegal.

Finally – but perhaps most importantly – one power which POTUS clearly lacks is the power to expend public funds without the authority of Congressional appropriation. In most situations, this is (at most) a negative restraint. Generally speaking, an appropriation makes available to POTUS funds which he may expend for a particular purpose. It does not follow that POTUS must incur such expenditure, provided that the funds are not applied for any other purpose. Indeed, it is an open question whether legislation which purports to require (rather than merely permit) the expenditure of funds by the executive would be struck-down as infringing the separation between legislative and executive powers.

Are President Trump’s Executive Orders Vulnerable to Challenge?

A. Birthright Citizenship and Gender Diversity

As mentioned above, at least two of President Trumps Executive Orders of 20 January 2025 – Executive Order 14160 (entitled Protecting the Meaning and Value of American Citizenship) and Executive Order 14168 (entitled Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government) – have already been challenged. Both are the subject of temporary judicial restraints, although this may simply reflect the ease with which it is possible, in the US, to find federal district judges who are partisan to one side of politics or the other. Neither case is likely to end anywhere short of SCOTUS.

B. Use of the Military against Illegal Immigrants

It has been suggested that the Proclamation of 20 January 2025 entitled Declaring a National Emergency at the Southern Border of the United States – relied upon to justify the engagement of military troops and resources in the detention and deportation of illegal immigrants – contravenes any number of Acts of Congress, from the Posse Comitatus Act of 1878 to the Endangered Species Act of 1973, and also lacks the support of Congressional appropriation for the necessary expenditure.[23] Attempts to characterise the influx of illegal immigrants as an “invasion” have also been criticised as a transparently cynical attempt to recategorise a problem of domestic law enforcement as a threat to national security, so as to invoke the powers of POTUS as “Commander in Chief”.[24] This may well call into question the extent to which Congress has the power to regulate the exercise of POTUS’s executive authority, whether acting under constitutional or congressional authority or a combination of both.

C. Withdrawal from Treaties

President Trump’s decisions to withdraw the US from the World Health Organization[25] and the Paris Climate Accords[26] may again raise the question, unresolved in Goldwater v. Carter,[27] whether two-thirds Senate approval is required to withdraw from (rather than enter into) international treaties. But it appears that, at least in this instance, the Trump Administration may be in the clear.

The Paris Climate Accords contain provisions enabling State parties to give notice of their accession or admission, and also notice of withdrawal,[28] with the result that a State party may withdraw merely by giving notice.[29] The Constitution of the World Health Organization contains no express provision regarding withdrawal, but, by the same token, contains no provision requiring that a State party which has acceded or been admitted is obliged to remain a member.[30] It would seem to follow that, in each instance, withdrawal is an issue falling entirely within the remit of POTUS pursuant to the Constitution’s vesting of “Executive power”.

In any event, despite the Constitution’s unambiguous requirement for two-thirds Senate approval when POTUS “makes Treaties”(Article II, section 2), it was found – virtually from the time of federation – that this requirement is utterly impracticable, as being entirely inconsistent with the way that treaties always had been (and have continued to be) made. Especially at a time before technology facilitated instant international communications, and when transoceanic travel by sailing ship took weeks, it would have been impossible for POTUS to “makes Treaties” if two-thirds Senate approval was required before a treaty was signed.

Accordingly, the practice has grown up for representatives of the executive branch (sometimes POTUS himself, but more often the Secretary of State or an Ambassador) to sign treaties, and then to seek Senate approval afterwards. Most famously, President Woodrow Wilson – a Democrat – signed both the Treaty of Versailles and the Covenant of the League of Nations at the Paris Peace Conference of 1919-20, but was unable to secure approval from the Republican-controlled Senate, let alone the requisite two-thirds majority approval. It is now widely understood that (at least for the purposes of domestic law[31]) a treaty signed by an appropriate representative of the US, but not ratified by the Senate, merely reflects the present intentions of the current US administration, and is not binding on the United States as a polity.[32]

D. Department of Government Efficiency (DOGE)

Executive Order 14158, of 20 January 2025, entitled Establishing and Implementing the President’s “Department of Government Efficiency”, has been challenged as contravening the Federal Advisory Committee Act of 1972.[33] This statute requires that “any committee, board, commission, council, conference, panel, task force, or other similar group” which gives “advice or recommendations” to POTUS must comprise a balance of opinions, conduct public meetings, and be open to public scrutiny.

However, the loser in this case is likely to be the 1972 Act, rather than the 2025 Executive Order, as the former infringes upon “long-recognized presidential powers” reserved to POTUS under the Constitution, and “violates separation of powers by limiting the terms on which the President can acquire information from nongovernmental advisory committees”.[34]

E. “Schedule F”

Executive Order 14171, of 20 January 2025, entitled Restoring Accountability to Policy-Influencing Positions Within the United States Federal Workforce, seeks to reinstate a particular job classification for federal civil servants in permanent policy-related positions. This classification was first implemented under the 2017-2021 Trump administration, when it was known as “Schedule F”, and was abrogated under the 2021-2025 Biden administration. As reinstated, substantially the same classification is now designated as “Schedule Policy/Career”.

Since the Civil Service Reform Act of 1978, US law has exempted from most civil service protections any federal employee “whose position has been determined to be of a confidential, policy-determining, policy-making or policy-advocating character”. However, until the first Trump administration, this has been practically a ‘dead letter’, as no civil service positions had been “determined” to be of the relevant character.

The intent of Schedule F was (ostensibly) to increase flexibility in the hiring and firing of policy advisers, and thereby improve performance management and accountability, as such employees:

• are not covered by Civil Service Rules and Regulations;
• have no guarantee of due process regarding dismissal or other disciplinary action;
• may be excluded from collective bargaining rights; and
• are open to a more streamlined hiring process, not requiring a competitive examination.

It remains the case that such employees enjoy statutory protection on the grounds of whistleblower status or partisan (political) affiliation, or as a complainant in respect of discrimination or harassment. However, the 2025 iteration – whilst stating that appointees “are not required to personally or politically support the current President or the policies of the current administration” – also adds failure faithfully to implement administration policies as a ground for dismissal.

The 2025 Executive Order has been challenged in the Federal District Court for the District of Columbia by the National Treasury Employees Union, principally on the ground that it is inconsistent with the legislation which it purports to invoke. In separate proceedings in the Federal District Court for the District of Columbia, it is challenged by the American Federation of Government Employees and the American Federation of State, County, and Municipal Employees on the ground that it was issued without complying with the “notice-and-comment” requirements of the Administrative Procedures Act of 1946. A third challenge, brought by Public Employees for Environmental Responsibility in the Federal District Court for the District of Maryland, seeks to argue both grounds.

F. Transgendered Military Personnel

Executive Order 14183 of 27 January 2025, entitled Prioritizing Military Excellence and Readiness, purported to reinforce military standards related to physical and mental fitness, unit cohesion, and mission effectiveness. Its provisions:

• rescinded a previous Executive Order which allowed transgendered people to serve in the military;
• stipulated that conditions requiring long-term medical treatment, including gender dysphoria, are inconsistent with the requirements of military service;
• disallowed the use, within the military, of pronouns which do not correspond with an individual’s biological sex;
• required service members to use sleeping, changing, and bathing facilities corresponding to their biological sex, with exceptions only in cases of operational necessity; and
• reaffirmed the requirement that all service members maintain high ethical and professional standards.

This has been challenged by a group of active duty transgender service members and prospective or current enlistees,[35] who argue that the explicit exclusion of this class of individuals from military service violates equal protection under the Fifth and Fourteenth Amendments’ “due process” clauses, in that the policy is arbitrary and lacks a legitimate government interest.

Disclaimer

Insofar as this article identifies a number of Executive Orders which have recently been promulgated, and some which have been the subject of judicial challenge, it is conceivable (although, one hopes, unlikely) that some readers may imagine that they discern indications of either the writer’s approval or his disapprobation of particular measures. Nothing could be further from the writer’s intention.

Rather, the writer seeks to emulate Sir Owen Dixon’s memorable observation, in respect of the High Court of Australia, that:[36]

Federalism means a demarcation of powers and this casts upon the court a responsibility of deciding whether legislation is within the boundaries of allotted powers. Unfortunately that responsibility is very widely misunderstood[;] misunderstood, largely by the popular use and misuse of terms which are not applicable, and it is not sufficiently recognised that the court’s sole function is to interpret a constitutional description of power or restraint upon power and say whether a given measure falls on one side of a line consequently drawn or on the other, and that it has nothing to do with the merits or demerits of the measure.

Such a function has led us all I think to believe that close adherence to legal reasoning is the only way to maintain the confidence of all parties in Federal conflicts. It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.

Disappointingly, it is unlikely that a Dixonian “strict and complete legalism” – without regard to perceptions of “the merits or demerits of the measure” – will be the defining features of any decision by SCOTUS regarding President Trump’s Executive Orders.

[1] “What is an Executive Order?”, Insights on Law and Society, vol. 17, no. 1, American Bar Association, Fall 2016.

[2] ibid.

[3] ibid.

[4] 542 U. S. 507 (2004); see also Boumediene v. Bush, 553 U.S. 723 (2008)

[5] 60 U.S. 393 (1857)

[6] Bernard Schwartz, A Book of Legal Lists: The Best and Worst in American Law, Oxford University Press (1997) at p. 70

[7] ibid., loc.cit.

[8] 272 U.S. 52 (1926)

[9] 343 U.S. 579 (1952)

[10] 272 U.S. 52 (1926)

[11] 591 U.S. 197 (2020)

[12] 561 U. S. 477 (2010)

[13] 444 U.S. 996 (1979)

[14] For present purposes, “last count” may be understood as having occurred on 30 January 2025, when this article was initially prepared. Doubtless the number of judicial challenges will have increased significantly by the time of publication.

[15] A current list of such challenges may be found at: https://www.justsecurity.org/107087/tracker-legal-challenges-trump-administration-actions

[16] Moe v. Trump, in the Federal District Court for the District of Massachusetts

[17] what was traditionally termed “Wednesbury unreasonableness” in Anglo-Australian jurisprudence, by reference to the landmark decision in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation, [1948] 1 KB 223

[18] see Executive Order 14156 of 20 January 2025 (entitled “Declaring a National Energy Emergency”)

[19] see Executive Order 14157 of 20 January 2025 (entitled “Designating Cartels And Other Organizations As Foreign Terrorist Organizations And Specially Designated Global Terrorists”); Executive Order 14175 of 22 January 2025 (entitled “Designation Of Ansar Allah as a Foreign Terrorist Organization”)

[20] see Executive Order 14166 of 20 January 2025 (entitled “Application of Protecting Americans from Foreign Adversary Controlled Applications Act to TikTok”)

[21] see Executive Order 14176 of 23 January 2025 (entitled “Declassification of Records Concerning the Assassinations of President John F. Kennedy, Senator Robert F. Kennedy, and the Reverend Dr. Martin Luther King, Jr.”)

[22] see Proclamation of 20 January 2025 entitled “Declaring a National Emergency at the Southern Border of the United States”

[23] see Mark Nevitt, What Just Happened: Unpacking Exec Order on National Emergency at the Southern Border (21 January 2025), published by “Just Security”, based at the Reiss Center on Law and Security at New York University School of Law, available at: https://www.justsecurity.org/106593/national-emergency-southern-border-order/

[24] ibid.

[25] see Executive Order 14155 of 20 January 2025 (entitled “Withdrawing the United States from the World Health Organization”)

[26] see Executive Order 14162 of 20 January 2025 (entitled “Putting America First In International Environmental Agreements”)

[27] 444 U.S. 996 (1979)

[28] available at http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf

[29] Hence, the US acceded to the Paris Climate Accords with effect from 4 November 2016; on 4 August 2017, the first Trump administration gave notice of intention to withdraw; official notice of withdrawal was given on the earliest permissible date, 4 November 2019 (i.e., three years after the US first acceded); this withdrawal took effect 12 months later, on 4 November 2020; the Biden administration then applied for re-admission on 20 January 2021, and was readmitted 30 days later.

[30] available at https://apps.who.int/gb/bd/pdf/bd47/en/constitution-en.pdf

[31] The situation may be different under international law. According to the Vienna Convention on the Law of Treaties (Done at Vienna on 23 May 1969), a nation is bound by a treaty executed on its behalf by a Head of State, a Head of Government, or a Minister for Foreign Affairs, by the head of a diplomatic mission (for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited), or by a representative accredited by a State to an international conference or to an international organization or one of its organs (for the purpose of adopting the text of a treaty in that conference, organization or organ).

It follows that treaties executed on behalf of the United States may bind the polity in international law, although not binding under US domestic law. Although this may seem remarkable, it is not: for example, in Australia, the provisions of an international treaty or convention only become binding under domestic law if they are given force under an Act of Parliament, so there are many more treaties which bind Australia as a polity than there are treaties which have become part of domestic law.

[32] see Abigail L. Sia, Withdrawing from Congressional-Executive Agreements with the Advice and Consent of Congress, 89 Fordham Law Review 797 (2020)

[33] At least three challenges have been filed, each in the Federal District Court for the District of Columbia, by a variety of advocacy groups. The lead plaintiffs are, in one case, Public Citizen, Inc.; in a second case, Joshua Erlich and Jerald Lentini; and, in the third, American Public Health Association.

[34] Jay S. Bybee, Advising the President: Separation of Powers and the Federal Advisory Committee Act, 104 Yale Law Journal 51 (1994)

[35] Talbott v. Trump, Federal District Court for the District of Columbia

[36] Sir Owen Dixon, “Address upon taking the oath of office in Sydney as Chief Justice of the High Court of Australia on 21st April, 1952” in Woinarski J (ed.), Jesting Pilate and Other Papers and Addresses, Melbourne (1965), p.247; (1952) 85 C.L.R. xi at xiii-xiv