Who has the authority to designate official languages in the United States?

Question

Recently the President has purported to set an official language for the United States of America, by executive order.

Doesn't adopting an official language require an act of Congress, like adopting a national bird does? If not, why not?

I'm not interested in other questions about the particular order, such as whether a designation of English as an or the only official language would violate equal protection provisions of the Constitution, just in who has the authority to make the official designation of official languages for the country.

Answer 1

Anyone can designate something an official language (or as an "official" anything), but that designation only has as much effect as the authority under which the person is acting. If congress has not delegated any authority or enacted any statute that gives effect to a person's designation of something, then the designation simply doesn't have any practical or legal effect.

I have been unable to identify any statute or regulation that either delegates this authority for or gives any effect to such a designation of an official language by the President. Typical drafting practice is to identify in the executive order any delegated authority being exercised (e.g.), but this EO does not.

The person isn't prevented from making the designation though. A court would not enjoin the person from making the designation. There would just be no effect.

The particular EO in question makes the designation, but it does more. It also rescinds a previous EO and orders the Attorney General to rescind any guidance issued under the previous EO. Those are the operative provisions, not the designation.

Answer 2

The President has set an official language for (only) the executive branch of the US government

This is probably within his power as he is the Head of State and I am unaware of any law that would prevent him doing this (see below). Note that the current EO does not require any change to the way the government operates, it simply revokes a Clinton EO that required the executive to accommodate other languages. What government agencies do with that is explicitly left to the heads of those agencies.

Of course, the President has no authority over the Congress or the Federal courts so they don’t have an official language. Nor does he have any power to do this for the states and it’s worth noting that several states already have official languages, some of them having more than just English.

However, any action to restrict or eliminate the use of other languages, even in dealings with the executive branch, are likely to run foul of the equal protection clause of the Fourteenth Amendment (see Meyer v Nebraska, 262 U.S. 390 (1923)).