State Executive Orders
A no-spin introduction to gubernatorial executive orders.
I’ve been thinking a lot about governors’ executive orders. Partly because I’m a nerd, but mostly because I’ve been seeing a lot of “legal experts” on Facebook purport to know a lot about the subject and I don’t find their answers to be satisfying (or well-researched). Also, I haven’t seen a fulsome discussion of the legal issues surrounding gubernatorial executive orders on the internet besides an article from 1984. By no means will this be a “fulsome account” of the issues—in fact, I expect to skip a lot of the details and boring legal caveats. Rather, expect just a collection of things that I have wanted an answer to but couldn’t find all in one place. I’ll break out this post into three parts: (1) a discussion of where governors’ executive power comes from, (2) a discussion of executive orders, and (3) my thoughts on how courts think about these executive orders.
Oh yeah — in case you were wondering, yes, I am a lawyer; no, I am not your lawyer; and no, this is not legal advice. All of the opinions and statements here are my own and do not represent the views of anyone else.
From where do governors get their power?
Governors are like people who find magic lamps. If you find a magic lamp, you suddenly get a lot of power, but you can only use that power if you play by the rules of the magic lamp. One of the rules of magic lamps is that you can’t ask for more wishes—you can’t expand your power.
That’s more-or-less how governors work. Governors get their power from their state’s constitution, state statutes, federal law, and courts. If the power to do something isn’t given to a governor (either expressly or implied), they can’t do that thing. Moreover, governors can’t expand their power—they can’t create new powers and give it to themselves—that’s the legislature’s job.
With respect to constitutional grants of power, each state’s constitution will literally tell you the powers its governor. Usually, these include boring, broad, and obvious things. For example, New Jersey’s constitution provides that “the executive power shall be vested in a Governor” and that “the Governor shall take care that the laws be faithfully executed.” But that’s really it as far as explicit grants of executive power go—state constitutions are usually silent on the specifics when it comes to executive power because we trust that governors will use their power responsibly and will be checked by either legislation, courts, or the polls. Does this work in practice? Does it make sense? Good questions—think about them and run for office/advocate for change if you’re unsatisfied with the answer you come up with.
It’s worth mentioning that the federal constitution still matters. It is a backstop to gubernatorial power and generally places limits on government action rather than granting any powers to governors. I say “generally” because there’s an argument that can be made that the 10th amendment (which reserves for the states all powers not explicitly granted to the federal government) indirectly gives governors powers by carving out for them a zone of policy-making that the federal government can’t touch, like education, but I’m not making that argument here and haven’t thought about that argument deeply enough to have an opinion. All you need to know is that the federal constitution still matters.
On top of the powers granted under constitutions, governors can be given extra power by their legislative branch. But not, like, unlimited power. Legislatures have constitutional limits to what laws they can create and how much of their power they can give up at both the state and federal constitutional level. For example, implicit in the separation of powers language of Article I of the Constitution of the United States is this thing called the non-delegation doctrine, which prevents legislatures from letting the executive branch do what legislatures do. Tying this back to governors’ powers, there’s basically no way the governor can just start making laws like a law maker, absent some intelligible principle from the legislature that guides and restricts a governor’s “lawmaking.” Making laws is not a governor’s job—its the legislature’s job.
Now, you may be wondering, “Where do executive orders fit in here? Are they made from statutes or constitutions?” Fret not! That’s coming up next.
Executive Orders!
Gubernatorial executive orders are weird. At a high level, the power to issue an executive order is generally the child of constitutional grants of executive power. But when we look closer, we see that that power is not granted in the same way or same amounts among the 50 states.
With respect to grants of the authority to issue executive orders:
30 states have constitutional provisions that give (or have been interpreted to give) their governors the authority to issue an executive order;
12 states imply that the governor has the authority to issue an executive order without an explicit constitutional grant;
36 states have at least one statute that authorizes their governor to issue an executive order;
6 states authorize executive orders solely by constitutional grants of power, without any accompanying statute (these are usually limited in scope to things like administrative oversight and reorganizations of the executive branch); and
6 states have developed some form of case law authorizing executive orders.
With respect to the subject matter of the executive orders:
48 states (excluding Alaska and Wyoming) explicitly give governors powers concerning civil defense disasters and public emergencies;
46 states (except Alaska, Missouri, Pennsylvania, and Washington) explicitly give governors powers concerning energy emergencies and conservation;
44 states (except Alaska, Indiana, Vermont, Washington, West Virginia, and Wisconsin) explicitly give governors powers concerning “other emergencies”;
35 states give governors powers concerning executive branch reorganization plans and agency creation;
46 states give governors powers concerning advisory or investigative committees/commissions;
39 states give governors powers concerning how to respond to federal programs and requirements;
34 states give governors powers concerning state personnel administration (like hiring freezes);
approximately 35 states give governors powers concerning “other administration”; and
approximately 35 states give governors powers concerning filing and publication procedures.
Note that most of these powers are not that sexy. The sexiest of the bunch is probably the powers concerning emergencies, but even the power to declare an emergency isn’t much on its own without additional grants of legislative power that allow governors to do things during emergencies, because without those additional grants of power, declarations of states of emergency aren’t much more than governors opening their window and yelling “EMERGENCY! WE’RE IN A STATE OF EMERGENCY!” It’s the additional grants of power that allow governors to do things that people tend to take issue with, like issuing stay-at-home orders, or cutting administrative red tape. For example, I showed you earlier that New Jersey’s constitution doesn’t mention the words “executive order.” The power to issue executive order, at a state constitutional level, comes from a combination of the grant of “executive power” and the ability of the governor to “faithfully execute” the laws. With respect to stay-at-home declarations, Governor Murphy relied upon a combination of authorities, including the constitution of New Jersey as well certain statutes, like the Health and Vital Statistics statutes, the Emergency and Temporary Acts provisions (which, in my opinion, do a lot of the legwork for the order), aid to localities in circumstances which threaten or endanger public health, safety or welfare provisions, and provisions ordering the militia to remain in active duty (New Jersey has a militia?).
Judicial Review of Executive Orders
There’s 51 different silos of governing law in America. Each of the 50 states has its own, independent laws and court interpretations of those laws, because federalism. Also, the federal government has its own, independent laws and own court interpretations of its laws. None of the states’ laws and interpretations thereof are binding on other states. In other words, there’s no one, single “test” to figure out whether a gubernatorial executive order is legal or illegal that you can bring from state to state.
To make matters worse, there’s a handful of ways to challenge an executive order. As described above, executive orders can come from constitutions, statutes, or refined through case law. This means that a potential challenger to an executive order must first consider where the authority to make the order came from. The way I see it, procedural challenges aside (like standing, ripeness and mootness, or other timing concerns), if you don’t like an executive order, there are two things you can argue to a judge to challenge that order:
the governor was either not given the authority to make that order or exceeded their authority; or
the order that was made with the proper authority was illegal for another reason.
In the first instance, the analysis is relatively straight-forward—look at the thing that grants the governor power and see whether it says (or whether it can be fairly implied that) the governor can do what the governor tried to do. You can do this by (1) looking to the provision under which the governor purported to issue the executive order (like the New Jersey order I mentioned earlier) and seeing whether that provision actually allows them to make that executive order, or (2) reviewing every grant of gubernatorial executive power in that state that would even plausibly make sense under the circumstances and arguing that none of those provisions provide the governor with the power to issue the order.
The second challenge is a bit more hairy because there are more arguments and the outcomes are much more fact-intensive. This is because you are attacking the substance of the order, rather than the higher-level issue of whether the authority was proper. Issues in this challenge generally include violating constitutional prohibitions against certain conduct or violating some other laws. For example, depending on your state (and depending on the provision that allowed the governor to make the order), you could argue:
the executive order was impermissibly discriminatory;
the executive order impermissibly abridged fundamental rights;
the executive order amounts to an impermissible taking of property; or
honestly, whatever else you can come up with under constitutional or statutory grounds.
Usually, when the source of a governor’s power to make executive orders comes from state constitutions, challengers to executive orders try to argue around the first challenge—whether the governor had the authority to make the order—as it’s a threshold question. In other words, if you don’t have the power to make the order, it doesn’t matter whether the order is illegal for other reasons—the order is illegal from the jump. It’s unclear how successful these challenges are. While not every state has addressed the issue, at least some states have interpreted liberally the “executive power” and “faithfully execute the laws” clauses of state constitutions (that boring text I mentioned above from New Jersey’s constitution), finding that the powers given to governors provides a lot of authority and discretion to act, including by making executive orders as needed for a wide range of purposes. That said, other states have come to literally the opposite conclusion, finding that the governor’s powers are super limited and can have only those powers expressly granted to them. In those states, executive orders are very limited and encompass small things like reorganizing the executive branch, state department hiring freezes, and the like.
Right now, there are folks trying to challenge, or have challenged, COVID-19 related executive orders in California, Illinois, Kansas, Kentucky (also this), Massachusetts, Michigan, New Jersey, New York (also this), North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania (also this), Texas, and Wisconsin. While some states’ courts have considered the legality of certain executive orders in a handful of contexts, the analyses that those states have used are not binding on other states that haven’t yet considered these issues. You can, however, argue to a judge that State X’s analyses is a good one and, even though it is not binding authority, it should be considered persuasively because you think that State X got it right. At the end of the day, though, State Y is more-or-less free to come up with whatever test it wants to evaluate an executive order. Of course, there are always the “don’t fix what’s not broken” or “don’t reinvent the wheel” adages, but judges are weird and have egos sometimes, which unfortunately can seep into their jurisprudence and make them want to do their own thing.
Conclusion
So, what have we learned? Let me sum it up in a few bullets:
Governors get their power from constitutions, statutes, and cases;
executive orders can only be made if governors have the power to make them and they aren’t otherwise illegal; and
it’s incredibly difficult to predict how a court will rule on the legality of an executive order.
A bit more on the last bullet. I think we need to recognize that judges are humans too. A lot of how these cases will turn out in the coming months will be, unfortunately, dependent on soft-factors, like a judge’s political preference or approach to constitutional/statutory interpretation. While judges are often pretty good at separating their personal beliefs from what the law compels, no judge is a robot and nothing exists in a vacuum. So, the next time you hear someone say that they think a case is definitely going to win or lose, please send them to this post, or, at the very least, tell them, “it depends.”