Bonus 134: What Executive Orders Can (and Can't) Do

President Trump's ominous new executive order on election administration is constrained by the limits on what an executive order can directly accomplish, especially outside of the executive branch.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, I put much of the bonus content behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit.

Despite a growing amount of Supreme Court-related news (including two more emergency applications from the Trump administration, and another two that are likely on their way after adverse circuit court rulings in the Alien Enemy Act and probationary employee cases), I wanted to use today’s bonus issue to explore a broader topic on which there appears to be a fair amount of public confusion: exactly what an “Executive Order” can and can’t accomplish. I’ve been meaning to write about this issue for some time, but the widely misleading media coverage of Tuesday’s election-related order, titled “Preserving and Protecting the Integrity of American Elections,” drove home the need to do so sooner, rather than later—for most of what the order purports to do involves actions that are either (1) purely administrative; (2) beyond the President’s power to take wholly by himself; or (3) potentially unlawful.

Some of that is because the President can’t unilaterally order state officials (who control almost every feature of federal elections) to do much of anything, nor can he unilaterally change state laws. And some of it is because most of the measures in the Executive Order that the President can accomplish directly are either entirely administrative (like directing the Attorney General to prioritize enforcement of certain existing laws) or quite possibly unlawful (like threatening to withhold funds from states that don’t do the President’s bidding). Executive orders aren’t themselves law; they are expressions of how the President intends to exercise powers he already has—whether through statutory delegation from Congress or directly under Article II of the Constitution. With that understanding, the question is which specific authorities allow the President to take each of the actions an executive order purports to take. And in the case of Tuesday’s missive, the answer is “only some.”

That doesn’t make Trump’s order any less ominous; the Constitution contemplates a role for the federal government in regulating the “time, place, and manner” of federal elections, but it is explicit that such a role is to be played by Congress, not by the President. In that respect, the order represents as stunning an effort by a President to seize control over the mechanics of federal elections as any we’ve seen in American history.

And it should go without saying that the guardrail of last resort preserving our democratic system is the ability of the American people to freely vote for who is going to represent them—whether in the 2026 midterms or in the 2028 presidential election. Any attempt to make it harder for those who are entitled to vote to cast their ballots should be universally condemned—especially when it comes from someone with such a transparent agenda. Thus, it wouldn’t surprise me if the few provisions of the order that actually do accomplish anything are quickly challenged in court. But when media organizations like the New York Times breathlessly report that the order “requires” things that it legally can’t, or that at least come with a lot more nuance, it seems worth emphasizing the limits on what even an ill-intentioned executive order can actually accomplish—lest we unintentionally give to the President more power than he actually has.

For those who are not paid subscribers, we’ll be back on Monday (if not sooner) with our regular coverage of the Court. For those who are, please read on.