Executive orders are similar to statutes. They are the law of the land, and a violation can mean civil sanctions or criminal penalties. The President, state governors, and mayors typically issue executive orders to carry out their duties, protect the public, and respond to emergencies. This article will review the basics of executive orders, what they do (and can't do), and the possible consequences for disobeying them.
An executive order is a written, signed, and published directive from the head of the executive branch—whether it's the President, a state governor, or a local mayor. Executive orders have the same effect as laws created through the legislative process, but they go through a simpler process that often bypasses the legislative branch.
This simpler process doesn't mean a mayor, a governor, or the President can issue executive orders to do whatever they please. The law limits their authority in this area. If the executive branch head exceeds its authority, the order (along with its implementation and enforcement) can be challenged under the applicable state or federal law, the state constitution, or the U.S. Constitution.
Executive orders can be used to perform a variety of tasks ranging from administrative and management issues to emergency responses in the face of a disaster or crisis.
While the public is likely most familiar with emergency orders, many executive orders direct more "mundane" tasks. For instance, an executive order might create a new government agency or combine agencies, manage administrative issues in the executive branch (like pay rates), implement a new state or federal program, or advance initiatives such as equity in hiring or energy conservation. Some of these "mundane" tasks, though, can end up being quite controversial, such as executive orders relating to immigration or education policies.
State governors and local mayors use emergency executive orders to respond quickly in the event of a crisis, such as a natural disaster, riot, or pandemic. The governor or mayor declares a state of emergency, which gives them the authority to issue emergency orders to protect life and property. (Most emergency orders will be issued at the local or state level, not at the federal level, given the nature of emergencies.)
For instance, a governor can use an emergency executive order to direct citizens to evacuate areas expected to be hit by a hurricane or be overtaken by wildfires. A governor or mayor may issue a curfew if violent riots erupt in a city. And, as we saw with COVID, governors can issue shelter-in-place orders, direct businesses and schools to close, and make other directives in order to contain the spread of infectious diseases.
Emergency orders often implement directives that wouldn't be allowed in non-emergency times, such as forcing people to stay in their homes. Because of their emergency nature, these orders are limited to responding to the crisis and last only as long as the crisis does. (Other executive orders generally last until the task is complete or the next executive revokes it.)
In addition to making directives, emergency orders should outline how these directives will be enforced and what the penalties are for violating them. If not, state law typically fills these gaps. Penalties might include civil fines, administrative or business licensing repercussions, or criminal penalties.
The enforcement authority for executive order directives often depends on the type of violation. For instance, state or local health officials may be authorized to enforce official quarantine or isolation orders. A state's department of commerce might be responsible for enforcing orders directed at businesses. Curfews and stay-at-home orders will typically be enforced by police patrolling the area, as will other criminal violations.
Again, the exact penalties will vary depending on the type of violation and violator. For instance, the order might provide that a business will temporarily lose its operating license for violating a shut-down order. Refusing to follow water conservation practices during a drought might result in water being turned off to a property or a civil fine. Violations of curfews, shelter-in-place orders, and evacuation orders typically result in a criminal penalty or infraction, such as a misdemeanor penalty, fine, or both. The officer might issue a citation (ticket) and release the person or arrest them and book them in jail.
Violating an executive order is similar to other law violations. A person can defend against the accusation by challenging the government's case against them, its evidence, witnesses, and so on, or by using other legal defenses under the law, such as a necessity defense.
When it comes to emergency orders, a common defense is challenging the validity of the order. If the governor or mayor overstepped their authority in issuing the order or certain directives, these provisions can't be enforced. A defendant might also argue the order is unconstitutional. Many emergency orders aimed at protecting public health and safety can conflict with other rights, such as freedom of assembly and due process rights.
If you or your business face penalties for a violation of an executive order, talk to an attorney about your options.