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Every president, starting with George Washington, has used the power of the presidency to issue executive orders. Few tools in American governance offer as much immediate influence as these orders — but it’s important to remember they are not without limits. People affected by executive orders often question the legality of these presidential decrees, and their challenges can ultimately make their way through the court system.

Lisa Manheim, a Charles I. Stone Professor of Law at the ºìÌÒÊÓƵ, explains that suing in response to an executive order can be possible — but challenging. In three minutes, she explains the different routes available for bringing lawsuits against executive orders, as well as other ways they can be stopped.

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Lisa Manheim (LM): I'm Lisa Mannheim, Charles I stone Professor of Law at the ºìÌÒÊÓƵ.

ºìÌÒÊÓƵ: What is an executive order?

LM: An executive order is a fancy term for an order of the president. Now, often presidents will have them written out on fancy paper and drafted by lawyers and presented for a signature, but those are just formalities, and it's not those formalities that makes it an executive order. Instead, an executive order is just that, an order of the executive, any order.

ºìÌÒÊÓƵ: Can you sue the president for issuing an executive order that's against the law?

LM: You can try, and people do. But it's really hard to win these lawsuits. When you sue the president directly, there are a bunch of hyper technical doctrines that tend to interfere with the lawsuit. And on top of that, most of the time an executive order doesn't itself change the law or affect people's rights. Instead, most of the time, an executive order directs someone else, the president's subordinates, to follow the president's orders. So, it's those subordinates who, technically speaking, are changing the law and affecting people's rights.

Given this dynamic, if you sue the president directly, you often have a problem establishing that the executive order has affected you enough directly to bring suit, which is to say that you often have what is referred to as a standing issue.

ºìÌÒÊÓƵ: Is there another way to bring a lawsuit in response to an unlawful executive order?

LM: Yeah, don't sue the president. Instead, sue the people who are carrying out the president's orders, sue the subordinates. For example, the head of the Department of State or the head of the department of education or the head of some other agency, or whoever else is being charged with carrying out the president's orders. By not suing the president directly, you avoid a bunch of these hyper technical doctrines, and if you're able to wait until the head of the agency has actually acted that weight often also solves your standing problems.

But even this is not everything, because if you sue in response to these actions by a president's subordinates, you're also able to take advantage of a really helpful law, the Administrative Procedure Act, which is often referred to as the APA. The APA is a law that gives litigants a ton of tools when suing the government for unlawful activity, but the APA only applies to agencies and their heads. It doesn't apply to the president. So, it can be really helpful to wait for those agency heads to act in response to an executive order and then to sue.

ºìÌÒÊÓƵ: Does it make a difference?

LM: Yeah, the lawsuit — whoever it's directed to — may feel more or less the same to the client, but what's in that lawsuit will be different. And for all the reasons we've discussed, the lawsuit will almost certainly be stronger if you wait and sue the agency heads. That said, sometimes people don't want to wait, or they can't wait. When that's the scenario you're in, you have to get creative because you'll need to find a way to address all these hyper technical issues and the standing issues and also the absence of the APA.

ºìÌÒÊÓƵ: Are there any other ways for an executive order to be stopped or challenged?

LM: Well, it depends on what's in the executive order, including what authority the executive order is based on. But most executive orders can be overridden by a congressional statute, and virtually all executive orders can be rescinded by a president, whether because the president has had a change of mind or because there's a new president in office.