Unless we are going to pretend, as a Bush appointment did, that President Clinton's order barring sexual orientation discrimination in the executive branch did not have the force of law behind it.

t has been an interesting several weeks for the presidency in many respects. This is a subject that I started thinking about in 1993 when, after President Clinton was elected, on his first day he issued a number of decisions that were widely characterized as executive orders in a memorandum that overturned some policies from the Bush administration and the Reagan administration. I did not know that a president could do that. I thought presidents had to go through congress fore everything, which sort of fits with the standard conceptions of the office that we have.

[snip]

In the waning days of his administration, Clinton issued dozens of executive orders and proclamations which, among other things, declared new national monuments, which take public lands off-limits to development.

[snip]

Bush, whose press secretary Ary Flysher had referred to Clinton as something of a busy beaver in his final days, promised a close review of these last minute orders. So, when Bush got into office, his first act on January 22nd was to issue a memorandum overturning what Clinton had done as his first acts as president. So, what happened is that Clinton overturned what had become known as the Mexico City Policy in which non-governmental organizations involved in family planning services, in order to receive U.S. foreign aid, had to fore-score all abortion-related services, whether or not they used U.S. taxpayer dollars. The Mexico City Policy imposed a ban that even if a group provided those services with their own funds, they would not be eligible for U.S. foreign aid. On January 22nd, 1993, Clinton reversed that policy. On January 22nd, 2001, Bush reversed Clinton, who had in turn reversed Reagan, who had in turn, reversed an earlier policy.

Similarly, the executive branch often makes law. The authority to do so generally derives from congressional delegation of this authority (the constitutionality of which is controversial), but  additionally the duties of the executive often require the interpretation of broadly defined authority. Moreover, executive discretion often requires executive officers to make policy-like decisions.

If Lawrence Tribe had said the same thing, I'd be confident that he knew what he was talking about, and this was just a slip of the tongue.