As compliance professionals in the United States, you' may be asking: can the President create, revoke, or modify statutes or regulations using Executive Orders, Proclamations, or Memoranda? This is particularly relevant in light of recent Presidential Actions, such as the "10 for 1" Executive Order¹, prompting questions about the extent of presidential power in shaping statutes and regulations. Understanding the scope and limitations of these actions is critical for maintaining compliance with environment, health, and safety requirements impacting your business. This blog post seeks to provide clarity on how Executive Orders and other Presidential Actions impact your environmental, health, and safety obligations. 

The Short Answer (and Why It Matters):  

In short, the answer is “no.” The President cannot unilaterally create, modify, or eliminate laws through Executive Orders. However, disregarding Executive Orders entirely would be a mistake.  Presidential Actions, including Executive Orders, are a powerful tool for setting policy and influencing the priorities of Congress and regulatory agencies in their rulemaking processes. You should thus continue your work to comply with guiding principles – federal, state, and local law as well as your permit conditions.  The ERM Libryo solution will notify you of changes and will keep you updated on the developments impacting your operations. 

Presidential Actions Defined: 

According to the Library of Congress, there is no “official” definition for these directives, but we may distinguish them by these characteristics: 

Executive Orders are “directed to, and govern actions by, Government officials and agencies.”  These have the force of law as long as the order is founded on the authority of the President derived from the Constitution or statute. These must be published in the Federal Register and in Title 3 of the Code of Federal Regulations. 

Proclamations generally deal with private individuals’ activities.  These do not have the force of law, unless the Constitution or a statute give the President authority over private individuals. 

Executive Memoranda are similar to Executive Orders except they are not required to be published in the Federal Register.  The President is not required to cite legal authority and the Office of Management and Budget is not required to issue a “Budgetary Impact Statement” related to these memoranda. 

Given the influence on the regulatory landscape, this blog post focuses primarily on Executive Orders but there are references to other types of Presidential Actions as these are often used in concert to affect policy.  

To get to grips with the mechanics, let's examine how Executive Orders function within the U.S. system of government. The Constitution establishes a tripartite system: the legislative branch (Congress) creates laws, the executive branch (headed by the President) executes and enforces those laws, and the judicial branch resolves disputes. 

• Article I, Section 1: Vests legislative power solely in Congress, preventing the Executive branch from creating laws.
• Article II, Section 3:  Empowers the President to direct Congress or regulatory agencies (including EPA) to act including creating, modifying, or revoking rules. 
• Executive Orders in Practice: While the Constitution doesn't explicitly mention Executive Orders, they have been in use since George Washington’s presidency, operating within these constitutional boundaries. 

Please note that Presidential Actions gain more permanency when ratified by Congress or being adopted as a regulation issued by an administrative agency requiring public notice and comment periods.   

Limits of Presidential Power:  Executive Orders Aren’t Unassailable 

It's crucial to remember that Executive Orders are not absolute decrees. They are subject to checks and balances: 

Revocation/Modification:  A subsequent president may revoke or modify an order. 

Congressional Challenge: Congress may challenge orders through legislation or by limiting funding.  

Judicial Review: Courts can invalidate an order if the court finds the president exceeded executive authority or when the order is unconstitutional.   Executive authority includes: (1) ensuring laws are faithfully executed (without acting as a lawmaker) or (2) exercising military power as Commander in Chief of the Armed Forces. The Supreme Court has established additional boundaries on Presidential authority as follows: 

• The President possesses the power to act in an emergency, particularly when national security is at stake.²  Under the National Emergencies Act, the President may declare an emergency.  We’ve seen this in recent times when President Trump declared an emergency to acquire funding for a border wall and when President Biden declared an emergency to forgive billions of dollars of student debt.  
• Executive power must be constitutional – to determine whether an executive order is constitutional, the Court often applies the rational basis test evaluating whether the order has a legitimate state interest and whether there is a rational connection between the order’s means and goals. Sometimes, the Court applies a “reasonableness” test as this test requires a higher level of scrutiny than the rational basis test.  The Supreme Court has not settled on a uniform level of scrutiny to evaluate the constitutionality of executive orders. 
• Under the “non-delegation doctrine,” Congress may not delegate legislative powers to administrative agencies nor to the President.³  However, an executive order has not been struck down by the Supreme Court on grounds of violating the non-delegation doctrine since 1935.⁴  
• The President may have more authority to create law when an order relates to international affairs.⁵ 
• Executive actions not authorized by Congress are more likely to be overturned.⁶ 

Last, Supreme Court Justice Jackson famously characterized presidential power as falling within one of three classifications.  However, all cases do not always fit cleanly into one of the three categories and this classification scheme may be better considered as a continuum.  The classifications are: (1) Presidential power is at an apex when used in accordance with the express or implied will of Congress, (2) Presidential power at its lowest point when against the will of Congress, and, in the middle is a “zone of twilight” where distribution between the executive and legislative branches is uncertain.⁷

Case Study:  The EPA and Recent Executive Actions 

Recent Presidential Actions directing EPA enforcement offer a real-world example of the President setting priorities and providing a compliance extension to specific stationary sources.  In early April 2025, an Executive Order⁸ aimed to bolster the clean coal industry was signed citing national security concerns related to the electrical grid and the need to power data centers.  This was followed by a Proclamation⁹ extending the EPA’s compliance deadline for the Mercury and Air Toxics Standards (MATS) for two years, again citing national security issues.   

• Impact: This Proclamation allows certain coal-fired power plants to comply with a less stringent version of MATS during this two-year period, instead of the more stringent rule put into effect by the previous Administration. 

• Scope: The White House released “Annex I,” listing the forty-seven (47) entities and each entity’s specific stationary sources covered by the President’s exemption and the EPA posted these documents on its website.¹⁰   

Key Takeaway: These actions didn’t void the MATS regulation but significantly altered enforcement in respect of the named entities, demonstrating how Executive Orders can reshape the regulatory landscape.  

Staying Ahead of the Curve 

Executive Orders may create uncertainty, but understanding their potential impact and their limitations helps maintain compliance.  ERM Libryo is committed to determining the effect of Presidential Actions, including Executive Orders, and monitoring statutory and regulatory changes, providing customers with timely insights and actionable guidance as these developments unfold. To learn more please get in touch here for a demonstration. 

¹ The "10 for 1" Executive Order, issued in January 2025, directed agencies to identify ten existing rules, regulations, or guidance documents to be repealed for every new one promulgated. This Executive Order, and others like it, have raised questions about the scope of presidential power and the potential for deregulation. 

² The Court held, in Hirabayashi v. United States (1943), military orders authorizing a curfew against Japanese Americans were not the product of discrimination but were measures taken to protect national security.  There are limits to such actions, though.  In Korematsu v. United States, 323 U.S. 214 (1944), military power was used to detain Japanese Americans in internment camps, however, this ruling was overturned in Trump v. Hawaii, 138 S.Ct. 2392 (2018), when the Court held “Korematsu was gravely wrong the day it was decided...and has no place in law under the Constitution.” 

³ In Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), the Supreme Court invalidated Roosevelt’s executive orders issued under the National Industrial Recovery Act regulating petroleum transport.  The Court held Congress impermissibly delegated legislative powers to the executive branch. 

⁴ Chemerinsky, Erwin, Constitutional Law 254 (2001). 

⁵ See U.S. v. Curtiss-Wright Export Corp. et al., 299 U.S. 304 (1936), where Congress delegated authority to Roosevelt authorizing him to ban the sale of weapons to countries engaged in armed conflict in the Chaco region of South America. 

⁶ See Youngstown Sheet & Tube Co. et al., 343 U.S. 579 (1952).  Here, Executive authority was further clarified in 1952 when President Truman ordered the Secretary of Commerce to seize and operate the country’s steel mills during the Korean War.  The Supreme Court invalidated the President’s order finding steel production was too attenuated from military operations to justify seizure of the steel mills and the President’s order failed to meet the test of execution of a congressional policy given the fact Truman’s act was not authorized by Congress. 

⁷ See Justice Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer (1952) and Dames & Moore v. Regan, 453 U.S. 654 (1981). 

⁸ FR Exec. Order No. 14241, 90 FR 15517 (April 14, 2025). 

⁹ Presidential Proclamation:  “Regulatory Relief for Certain Stationary Sources to Promote American Energy,” April 8, 2025. 

¹⁰ Environmental Protection Agency, Presidential Proclamation – Regulatory Relief for Certain Stationary Sources to Promote American Energy | US EPA