What you need to know
Between January 20, 2025 and April 21, 2025, President Trump issued 129 executive orders, a historically high number for the start of a term. Many of these Orders are designed to implement significant policy changes. What limits a President’s authority to change policy using this procedure?
- Presidents can issue Executive Orders that unilaterally change government policy.
- One constrain on this process is the Administrative Procedure Act.
- In this brief, we review the Act and its impact on presidential power.
What Are Executive Orders?
Presidents use executive orders to reorganize the federal bureaucracy, change how laws or regulations are interpreted and to make statements of national priorities among other reasons. The table below shows the average number of executive orders issued by Presidents since the 1970s.
How does the Administrative Procedure Act constrain Executive Orders?
Most executive orders deal with relatively small matters – for example, Presidents often issue an order allowing federal workers to go home early on the last working day before Christmas. However, some executive orders have had significant policy consequences. President Kennedy used an executive order to establish the Peace Corps, and President Obama created the DACA (Deferred Action for Childhood Arrivals) program that allowed undocumented adults brought to America as children to have legal status, including work authorization. Many of President Trump’s recent executive orders were similarly more substantive, including withdrawing the U.S. from the Paris Climate Accords, designating drug cartels as terrorist organizations, and abolishing the Department of Education.
The general rule on executive orders is that they remain in effect until repealed by Congress or removed by a future President. However, Presidents cannot use executive orders to undo enacted laws. Full Implementation of President Trump’s Department of Education order will require Congress to repeal the law establishing the Department and repeal other laws that created programs within the Department, such as federal student loans.
In addition, the Administrative Procedures Act (APA) sets out requirements that must be followed for an executive order that changes an interpretation (a “rule”) of a federal statute. Rules are defined in the APA as "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.”
When a President seeks to change a rule, the government is required to follow the steps laid out in the APA: publish a notice of intent in the Federal Register, solicit public comments, respond to those comments, and then finalize and publish the new rule. A typical rulemaking process takes six months to several years, depending on the complexity of the proposal. At each step, groups that oppose the change can bring legal action to delay the process.
In response to President Trump’s recent executive orders, as of late April 2025, at least 202 lawsuits have been filed in federal courts challenging the legality of one or more orders. At least 118 (59.8%) lawsuits explicitly mention that the orders failed to follow the APA. The outcome of these cases remains uncertain. However, in several cases, judges have issued injunctions to halt the implementation of the orders while claims regarding the APA are assessed. These include President Trump’s orders on transgender passport identification, termination of federal workers, and cancellation of federal science grants.
The Take Away
Presidents have the power to change government policies through executive orders. During his first months in office, President Trump implemented many significant policy changes through executive orders.
One important limitation of executive orders is that they must comply with the provisions of the Administrative Procedures Act. This requirement can lead to significant implementation delays.
Many court cases challenging President Trump’s executive orders cite noncompliance with the APA. If these cases survive judicial consideration, they will force the President to follow the APA procedures to implement his policy goals.
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Further reading
McNollgast. (1999). The political origins of the Administrative Procedure Act. Journal of Law, Economics, and Organization, 15(1), 180-217.
Walker, C. J. (2017). Modernizing the Administrative Procedure Act. Administrative Law Review, 69(3), 629-670.
Sources
Congressional Research Service. A Brief Overview of Rulemaking and Judicial Review. Available at https://tinyurl.com/4u6jr53j, accessed 4/21/25.
American Presidency Project. 2025. Executive Orders. Available at https://tinyurl.com/ykjz7hen, accessed 4/21/25.
Mayer, K. R. (2002). With the stroke of a pen: Executive orders and presidential power. Princeton University Press.
Just Security. 2025. Litigation Tracker: Legal Challenges to Trump Administrative Actions. Available at https://tinyurl.com/2p8dhsc, accessed 4/21/25.
McHardy, M. 2025. Judge Reprimands Trump Admin for Power Play on USAID. Newsweek 3/11/25. Available at https://tinyurl.com/te6zvpdu, accessed 4/28/25.
Contributors
John Arnold (Intern) is a sophomore at Binghamton University majoring in Political Science and Economics
Robert Holahan (Content Lead) is Associate Professor of Political Science and Faculty-in-Residence of the Dickinson Research Team (DiRT) at Binghamton University (SUNY). He holds a PhD in Political Science from Indiana University where his advisor was Nobel Laureate Elinor Ostrom. His research focuses on natural resource policy, particularly domestic oil and gas production, and extends into international environmental policy. He was PI on a National Science Foundation grant that utilized a 3000-person mail-based survey, several internet-based surveys, and a series of laboratory economics experiments to analyze Americans’ perspectives on energy production issues like oil drilling and wind farm development.
William Bianco is Professor of Political Science at Indiana University and Founding Director of the Indiana Political Analytics Workshop. He received his PhD from the University of Rochester. His teaching focuses on first-year students and the Introduction to American Government class, emphasizing quantitative literacy. He is the co-author of American Politics Today, an introductory textbook published by W. W. Norton now in its 8th edition, and authored a second textbook, American Politics: Strategy and Choice. His research program is on American politics, including Trust: Representatives and Constituents and numerous articles. He was also the PI or Co-PI for seven National Science Foundation grants and a current grant from the Russell Sage Foundation on the sources of inequalities in federal COVID assistance programs. His op-eds have been published in the Washington Post, the Indianapolis Star, Newsday, and other venues.
