In 2014, President Barack Obama raised the ire of Republicans when he circumvented Congress and effectively legislated from the Oval Office utilizing executive orders.

“We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone,” Obama quipped at the time.

Fast forward six years — that pen and phone belong to President Donald Trump, and he’s following right along in Obama’s footsteps.

At some point, another Democrat will inherit the pen and the phone, and the legacy will undoubtedly continue. Each executive order sets a precedent and effectively expands the power of the next person in office.

Presidents have been issuing EOs since the George Washington administration.

So what’s the deal with EOs? Are they legitimate exercises of executive authority? Or are they a usurpation of power?

People seem to adopt one of two extremes. On the one hand, many argue the president can legitimately issue executive orders with virtually no limitation. The left aggressively advanced this idea during the Obama years. In many cases, the president did indeed utilized EOs to formulate policy, shape rules and essentially legislate from the Oval Office. This clearly went beyond the scope of legitimate executive authority.

On the other side of the debate, some claim the president cannot issue executive orders for any purpose whatsoever.

Constitutionally, the truth falls somewhere in the middle.

The president has the authority to issue EOs relating to the operation of the executive branch, and to direct and manage its personnel. For example, Pres. Trump signed an order during his first full day in the White House instituting “a freeze on the hiring of Federal civilian employees to be applied across the board in the executive branch.” The president remains perfectly within his authority to direct staffing levels in executive branch agencies.

On the other hand, the president cannot constitutionally issue orders that implement rules, regulations and edicts applying to the people, orders that bypass the legislative processes, or orders that subvert legislation that was passed by Congress and signed into law. This crosses over into legislative authority. As just one example, EOs establishing environmental rules fall outside of presidential executive authority.

Historian and lawyer Kevin Gutzman summed it up succinctly.

“Article II, Section 1 of the Constitution says the executive power will be vested in a president of the United States. Other members of the Executive Branch are his subordinates. He can legitimately order them to carry out his legal policies. What he can’t legitimately do is order them to carry out illegal policies, as when Obama ordered them to ignore the calendar established by the PPACA and when he used one to rewrite the immigration laws.”

Modern presidents exercise powers far beyond those delegated to them in the Constitution and constantly usurp legislative authority. Much of the blame lies with Congress. It often delegates legislative authority to the president by writing vague, open-ended laws that expand executive authority into the legislative realm. Congress’s delegation of war powers to the executive branch provides one of the best examples.

In the American system, Congress should serve as the most powerful branch, as it most directly represents the people. Instead, America has evolved into a system very much like the one the American revolutionaries sought to destroy.

This article was adapted from “Constitution Owner’s Manual: The Real Constitution the Politicians Don’t Want You to Know About.” For more information about the book, visit

Concordia res parvae crescunt

Small things grow great by concord...

Tenth Amendment Center

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."


Get in Touch

6 + 7 =

PO BOX 13458
Los Angeles, CA 90013


The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles


Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog


State of the Nullification Movement

108 pages. History, constitutionality, and application today.

get the report


Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty


maharrey minute

The title says it all. Mike Maharrey with a 1 minute take on issues under a 10th Amendment lens.

maharrey minute

Tenther Essentials

2-4 minute videos on key Constitutional issues – history, and application today


Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!



The 10th Amendment

History, meaning, and purpose – the “Foundation of the Constitution.”

10th Amendment



Get an overview of the principles, background, and application in history – and today.