Can a President make laws without Congressional approval (the ultimate law-making body of the US government)? In short, yes, with an Executive Order (EO). Under Article II, Section 1 of the Constitution, the President is entitled to make Executive Orders, which are legally binding guidelines for Executive Departments.
As “The Nation” notes, “Executive Orders have been used by every chief executive since the time of George Washington.” This doesn’t mean that they are popular, and many go against the wishes of Congress (which can seek to override the EO with legislation of its own).
Executive Orders have been used throughout history to enact important reforms. For example, President Harry Truman used an EO to integrate the Armed Forces. President Dwight Eisenhower used an EO to desegregate schools. President Ronald Reagan used an EO to ban the use of Federal funds for abortion, and President Bill Clinton reversed Reagan’s EO when he followed. President Obama has used an EO to create a system of American Heritage Rivers.
All Executive Orders Are Not Alike
Of course, Congress frequently opposes the use of Executive Orders in that they allow the President to take unilateral action with regard to creating law. However, not all Executive Orders are alike. Some are fairly benign, more ceremonial than life-changing. For example, an EO was used to create “National Take Your Child to Work Day.”
Many deals with treaties, issues of national defense, and foreign policy. These typically do not raise the ire of Congress, as one of the President’s chief roles is as “Commander in Chief.” Frequently it serves a good purpose as well. Many Presidential Decision Directives aka National Security Directives (which are Executive Orders by another name) are not made public precisely for security purposes.
Controversial Executive Orders
Not all Executive Orders issued by the President are as well accepted by the Congress, however. Extreme examples include the suspension of habeas corpus by President Abraham Lincoln when he issued the Emancipation Proclamation by Executive Order. Another controversial use was enacted during World War II by FDR, which allowed for the internment of Japanese-Americans.
These orders can be challenged in court, and in fact, an Executive Order of President Truman that seized control of all steel mills as a tactic for settling ongoing labor issues was ruled by court to be unconstitutional. The reason cited was that nowhere in the Constitution was there the allowance for taking private property for the purpose of dealing with labor disputes.
As noted earlier, Congress can also pass legislation that overturns an Executive Order. However, the President can then veto that legislation, and a two-thirds majority would be necessary to implement any reversal.
Clearly, checks and balances are still built into the system of the US government to prevent a dictatorship from seizing hold. The majority of Executive Orders rarely come into question by the Congress, but in times of extreme animosity between the President and Congress, this facet of Presidential power is more likely to be called into question.