In recent decades, the use of executive orders by U.S. Presidents has increasingly drawn attention, particularly when these instruments effectively create or significantly modify policy frameworks without explicit congressional legislation. Although the U.S. Constitution clearly designates legislative authority to Congress, Presidents have historically relied on executive orders to enact policies swiftly, bypassing the often slow and complex legislative process. Examples such as President Truman’s Executive Order 9981, which desegregated the armed forces, or President Bush’s Executive Order 13228, establishing the Department of Homeland Security, demonstrate the profound policy impacts executive orders can have, especially in times of crisis or exceptional circumstances (Balássy, 2022).

Yet, the question arises whether such executive instruments should be normalized within regular governance or remain confined to extraordinary situations. When executive orders become routine instruments for policy-making, fundamental constitutional and normative tensions inevitably emerge. These tensions are not unique to the United States; similar dynamics can be observed in other constitutional democracies, such as Hungary.

Executive orders within the U.S. legal framework are directives issued by the President that carry significant normative weight, often grounded in constitutional authority or explicit congressional delegation. (Fisher, 1995) Such orders are typically employed either under the inherent constitutional powers vested in the President – particularly the “executive power” and the role as Commander-in-Chief – or through statutory delegations provided by Congress, thus offering a robust dual basis for their issuance. A significant portion of executive orders derives from delegated authority, whereby Congress – despite the theoretical limits of nondelegation – has routinely granted substantial discretionary power to the executive to elaborate the content and implementation of legislative policy. (Fisher, 1997) From a normative perspective, executive orders can be classified into internal and external orders. Internal directives regulate operations within the executive branch itself, setting administrative guidelines and managing federal agency conduct, while external orders carry implications beyond the internal governmental structure, affecting policy areas such as immigration, national security, and federal contracting. Although executive orders are typically directed at executive officials, their legal validity derives from the president’s authority and their impact often extends well beyond the executive branch. Additionally, the scope of executive orders varies, encompassing both general norms with broad applicability – such as Executive Order 13658, raising the minimum wage for federal contractors – and individual directives, which address particularized circumstances like the sanctions imposed through specific orders.

Similarly, in the Hungarian context, government resolutions (kormányhatározatok) serve as an instrumental form of normative regulation, although they differ structurally and procedurally from their U.S. counterparts. Hungarian government resolutions are primarily grounded in statutory and customary  authority (i.e., authority under which the rules on the drafting of legislation and the Act on Legislation are applied as a matter of consistent administrative practice), intended to facilitate administrative coordination and policy implementation in line with the government’s established programmatic goals. These resolutions possess both internal and external normative characteristics. Internally, they function as administrative (executive) directives binding state organs, defining organizational tasks, and setting procedural frameworks. Externally, normative resolutions can indirectly shape public conduct by instructing governmental entities on the implementation of broader (executive) regulatory policies. Unlike executive orders, Hungarian government resolutions typically require collective governmental approval rather than unilateral issuance by a single executive figure, reflecting a fundamentally collaborative governmental decision-making process. Additionally, Hungarian resolutions clearly delineate normative acts – general and future-oriented, mandating behaviors – and individual acts – specifically targeted administrative decisions – both of which form integral parts of the governance framework, albeit with differing legal treatments concerning enforceability, review, and public accessibility. However, this formal collegiality is nuanced by a key provision: under point 77 of Government Resolution 1352/2022. (VII.21.), the Prime Minister may, in exceptional cases and between cabinet sessions, issue government resolutions independently for purposes such as designating tasks, conducting international negotiations, approving appointments, and organizing state visits.

“Between the meetings of the Government, the Prime Minister – under exceptionally justified circumstances – may issue government resolutions for the purpose of assigning tasks, conducting international negotiations and signing or approving agreements, organizing official visits, making certain appointments and dismissals, and awarding decorations. In other cases, the Prime Minister may issue government decrees and government resolutions based on the authorization of the Government”

The normative relevance is further intensified by the fact that such individually issued government resolutions are not subject to mandatory post-factum approval, nor are they always publicly accessible, given their potential classification as preparatory data under the Privacy and Freedom of Information Act (Info tv. 27. §). This opaque process draws these Hungarian instruments closer in both function and constitutional complexity to the American executive order, especially regarding the concentration of executive power in a single hand. Thus, despite structural differences, the legal nature and effects of certain Hungarian government resolutions – especially those issued under point 77 – bear a substantive resemblance to the executive order model, both in their potential normative force and unilateral issuance.

However, a critical tension arises when such extraordinary executive instruments are normalized – meaning that a singular or exceptional “case” gradually becomes business-as-usual –, blurring the boundaries between executive and legislative powers. This tension is similarly reflected in the Hungarian legal system, where government decrees and resolutions play roles comparable to U.S. executive orders.

In Hungary, government decrees (kormányrendeletek) are explicitly bound to legislative frameworks, typically clarifying or implementing statutory provisions (Balássy, 2023). Conversely, government resolutions (kormányhatározatok), initially meant to be internal administrative directives, possess implicit normative power. Although these resolutions formally lack direct normative force on citizens, their influence extends implicitly through administrative channels, shaping public behavior and policy outcomes indirectly (Balássy, 2022)

This implicit normative power becomes particularly evident when instructions or requests emanate from entities endowed with coercive capabilities, such as armed forces or administrative structures with disciplinary authority. Even absent explicit sanctions, those receiving instructions from entities holding such power are inclined to comply due to perceived risks or potential repercussions, however indirectly associated with the latent threat of institutional disfavor, administrative disadvantage, or regulatory scrutiny. Thus, „recommendations” or „requests” from institutions of authority like a government or a president inherently carry implicit coercive force, transforming seemingly benign requests into de facto commands.

For instance, when the Hungarian government „requests” action from the Prosecutor General, the President of the National Office for the Judiciary, the National Judicial Council, or the President of the Hungarian Bar Association, the request, although couched as non-mandatory, implicitly compels compliance due to the underlying authority and potential indirect consequences [1543/2021. (VIII. 4.), 1228/2022. (IV. 14.), 1249/2023 (VI.28.), 1025/2024. (II. 14.) government resolutions]. Here, compliance does not necessarily result from explicit coercion but from the perceived or real threat of adverse outcomes within administrative or hierarchical structures (Balássy, 2022).

As Terry Eastland observed, “In theory, executive orders are directed to those who enforce the laws, but often they have at least as much impact on the governed as the governors” (Eastland, 1992). This kind of implicit enforcement aligns with the notion of lex imperfecta, where norms operate without explicit sanctions but still shape behavior through structural pressure. The scope of executive authority has also been shaped by contrasting presidential philosophies: Roosevelt’s stewardship theory endorsed broad discretionary action unless expressly forbidden by law, while Taft warned that such an “unsafe doctrine” could justify arbitrary government and threaten private rights (Taft, 1916) This dynamic highlights how the power behind norms often determines their effective strength and enforceability, irrespective of explicit sanction mechanisms.

Richard Neustadt famously remarked, “Presidential power […] is the power to persuade, […]” emphasizing that executive authority extends beyond explicit legal provisions to include the subtle and persuasive capacity inherent in the executive role. This persuasive element, paired with implicit coercive capabilities, enables executive orders and similar instruments to achieve normative effectiveness despite lacking explicit sanctions (Neustadt, 1990). However, these implicit normative powers are subject to constitutional checks. When executive orders or government resolutions act beyond their intended scope, judicial intervention through injunctions in the U.S., or constitutional review by bodies such as Hungary’s Constitutional Court can annul or limit their effects. Nevertheless, these remedies often come post-implementation, highlighting the potential risks inherent in these executive tools’ immediate binding nature. This immediacy creates a challenging dilemma within governmental structures. Administrative personnel must choose between immediate compliance with potentially questionable normative instructions and risking indirect yet significant professional repercussions, including potential job loss, if they decline. Such situations underline the critical nature of implicit enforcement mechanisms within executive governance.

In conclusion, executive orders and government resolutions, although sometimes lacking explicit coercive elements, exhibit profound normative force due to implicit coercive power structures. This reality necessitates a vigilant constitutional and democratic oversight to balance effective executive action with the imperative to maintain transparency, accountability, and adherence to fundamental rule-of-law principles.

The distinction between mere coercion and legitimate legal norms was famously explored by H.L.A. Hart, who proposed five key criteria differentiating genuine legal norms from simple commands enforced by coercion, exemplified by his analogy of a gunman’s demand. Hart argued that true legal norms exhibit generality, persistence, formal legitimacy, an internal point of view, and a monopoly of coercion by legitimate authorities. Applying Hart’s criteria, we examine whether U.S. Presidential executive orders and Hungarian government resolutions possess genuine legal character.

First, considering the criterion of generality, both executive orders and Hungarian government resolutions generally fulfill this criterion. Executive orders, such as Truman’s Executive Order 9981 on desegregation or Bush’s Executive Order 13228 establishing the Department of Homeland Security, set forth broad guidelines rather than addressing specific individuals. Similarly, Hungarian government resolutions, although often designed for internal administrative guidance, frequently set policies or norms impacting broad administrative structures and indirectly influencing public behaviors (Hart, 21).

Second, persistence is typically present in both executive orders and government resolutions. Unlike transient commands, executive orders and government resolutions are recorded, maintained, and guide future behavior. Although subject to amendment or repeal, these norms are stable enough to allow consistent implementation across multiple instances and periods (Hart, 23, 61-64).

Third, formal legitimacy distinguishes executive orders and government resolutions from mere coercive commands. Both derive legitimacy from constitutional or statutory authority. In the U.S., executive orders are grounded in constitutional provisions or statutory delegations by Congress. In Hungary, government resolutions gain legitimacy from collective government action, often explicitly authorized by statutory frameworks. This legitimacy differentiates them substantially from a gunman’s command, which lacks any formal legal recognition.

Fourth, regarding the internal point of view, both executive orders and Hungarian government resolutions foster an internal acceptance within administrative structures. Individuals complying with these norms typically do so not merely due to external coercion but because of internal acceptance of their legitimacy within the legal and administrative framework. Administrative personnel usually perceive these instruments as binding, legitimate directives integral to governmental operations (Hart, 24-25).

Lastly, concerning the monopoly of coercion, executive orders and government resolutions uniquely align with Hart’s legal framework. Both instruments rely on implicit rather than explicit coercive mechanisms, leveraging institutional compliance and indirect administrative consequences. The implicit coercive force stems from the executive authority’s inherent hierarchical power structure, ensuring compliance through indirect pressures such as professional repercussions rather than direct punitive measures.

Thus, analyzing executive orders and Hungarian government resolutions through Hart’s criteria reveals that these instruments substantially fulfill the characteristics of genuine legal norms. Although their coercive force is often implicit, their legitimacy, generality, persistence, internal acceptance, and institutional monopoly of coercion clearly distinguish them from mere coercive demands. This analysis reinforces their status as legitimate normative instruments within their respective constitutional frameworks, despite debates about their democratic legitimacy and potential overreach. Executive orders should not merely be regarded as administrative instructions, but rather as quasi-legislative acts of the executive branch, since they may establish generally applicable, future-oriented norms whose regulatory intensity can be likened to that of public law provision (Kenneth, 2021).

Ultimately, recognizing the nuanced normative power of executive orders and government resolutions necessitates rigorous constitutional oversight to balance executive efficiency with democratic accountability and rule-of-law principles. By explicitly acknowledging and regulating these implicit normative instruments, we can better maintain democratic integrity and constitutional order.

In this light, the government resolution – much like the executive order –demonstrates how state authority materializes through instruments that, while not always recognized as formal legislation, shape normative expectations and conduct. As Hermann Heller, a leading German legal theorist and constitutional scholar of the Weimar era, insightfully observed: “Was von oben als Befehl, Urteil oder Rechtsgeschäft erscheint, erscheint von unten als Rechtssatz. ”

Appendix: Definitional Comparison

An Executive Order is a formal directive issued by the President of the United States, instructing federal agencies or officials on how to implement existing laws, policies, or administrative procedures. Executive Orders derive their authority from either the U.S. Constitution (original power) or statutory delegation by Congress (derivative power). While they do not constitute legislation passed by Congress, Executive Orders carry the force of law within the executive branch and can have broad regulatory or policy implications. They may be normative (setting general rules) or individual (applying to specific cases) and can be classified as internal (affecting government agencies) or external. Due to their unilateral nature, Executive Orders are subject to judicial review, and courts may strike them down if they exceed presidential authority or violate constitutional provisions. Some Executive Orders, particularly those concerning national security, may be classified and remain undisclosed to the public. The President’s control over classified information – despite the Constitution’s silence on the matter –is one of the most striking examples of how executive orders have served to expand implied powers, particularly in the realm of national security (Kenneth, 2021, 43). In essence, an Executive Order is a quasi-legislative instrument that functions as an extension of executive power, operating at the intersection of law and politics.

A Government Resolution (kormányhatározat) is an official decision adopted by the Government, functioning either as a normative or individual administrative instrument. Government resolutions are not listed among the formal sources of law under the Hungarian Fundamental Law however, they may still contain binding normative provisions within the material concept of legal norms. Resolutions may be issued under original constitutional authority or based on statutory delegation and can take effect either internally (affecting only state organs and administrative bodies) or externally (influencing citizens or third parties). Normative government resolutions prescribe general and future-oriented conduct for a broad class of addressees and are typically subject to publication in the Official Gazette, constituting their condition of validity. By contrast, individual (person-concerned “2000”) resolutions are directed at a closed circle of recipients – usually ministries or public agencies – and are not subject to publication. These may determine tasks and responsibilities in specific cases and are exempt from constitutional review. Both types may be adopted collectively by the government or, under exceptional circumstances, unilaterally by the Prime Minister pursuant to § 77 of Government Resolution 1352/2022 (VII.21.), which blurs the distinction between collegial and personal executive action. Although government resolutions are not recognized as laws, they often function as quasi-legislative instruments, especially when issued in general terms, implemented by administrative agencies, and backed by the implicit coercive power of the state. As such, they play a significant role in shaping public administration and policy implementation in Hungary. In this respect, their structure, scope, and legal effect closely resemble the role of Executive Orders in the United States.

Ádám Miklós Balássy is an adjunct / associate professor at the Jurisprudence Department of the Faculty of Law, Károli Gáspár University of the Reformed Church in Hungary. His research focuses on Hungarian public administration, executive instruments, and legal theory.