Presidential Executive Orders And The Constitution: What Can Trump Really Do?

U.S. President Donald Trump signs an executive order he said would impose tighter vetting to prevent foreign terrorists from
U.S. President Donald Trump signs an executive order he said would impose tighter vetting to prevent foreign terrorists from entering the United States at the Pentagon in Washington, U.S., January 27, 2017. The executive order signed by Trump imposes a four-month travel ban on refugees entering the United States and a 90-day hold on travelers from Syria, Iran and five other Muslim-majority countries. REUTERS/Carlos Barria TPX IMAGES OF THE DAY

What is an executive order and what can presidents such as Trump do with them?

Article I, Section 7 of the Constitution describes the process for how a bill becomes a law. The process requires both houses of Congress to pass legislation with identical language and for it to be signed by the president. In the alternative, Congress by two-thirds majorities in both Houses can override a presidential veto to make something a law, and in some cases bills the president has not signed but not vetoed and returned to Congress may also become a law (if the president refuses to return a bill adopted in the last 10 days of a session, the president has exercised what is known as a pocket veto). Once a bill becomes a law it is legally binding, enforceable by the executive branch.

Yet the congressional route is not the only way law is created. Orders by the courts become binding and enforceable as law by the courts. In some circumstances, orders issued by the President of the United States too carry the force of law. These executive orders have been issued by presidents since the time George Washington became president, and over time they have been used by almost every president, often either with support or controversy.

The legal or constitutional basis for executive orders has several sources. The first is in Article II, Section I, Clause 1, which vests in the president the executive power, and Article II, Section 3, which requires that presidents "take care that the laws be faithfully executed." While lacking precise definition, the executive power gives presidents broad enforcement authority to use their discretion to determine how to enforce the law or to otherwise manage the resources and staff of the executive department. Second, executive orders have a legal basis in power delegated by Congress to the president or executive department agencies. Congress may delegate to the Environmental Protection Agency, for example, authority to make determinations about what constitutes clean air or water under the Clean Water Act of 1972 or Clean Air Act of 1973. This delegation power is subject to the constitutional limits outlined by a host of Supreme Court decision.

Third, since the adoption of the Administrative Procedures Act (APA) in 1946, there is a complex process and structure for how administrative agencies and members of the executive branch can make rules and have then become legally binding. Taken together, these constitutional clauses, specific congressional delegation, and the rule-making process of the APA form the legal basis of presidential executive orders.

With the exception of President William Henry Harrison, who died barely a month after being sworn into office, every president has issued executive orders. George Washington issued the first one, directing officers of the Articles of Confederation government to compose a report for his administration on the status or state of affairs of America. Other famous orders included Thomas Jefferson ordering the Louisiana Purchase, James Knox Polk ordering the annexation of Texas, Abraham Lincoln's Emancipation Proclamation, Franklin Roosevelt ordering the internment of Japanese-Americans during World War II, and John Kennedy creating the Peace Corps. The numbering of executive orders began in 1907, and not until the Federal Registration Act of 1936 was there a formal process for recording executive orders. Prior to 1936 and 1907 executive orders were issued less formally.

From 1789 to the end of the Obama presidency there have been nearly 14,000 executive orders. Franklin Roosevelt holds the record with 3,721 orders, with second place going to Woodrow Wilson at 1,803, and third place to Calvin Coolidge with 1,203. Among recent presidents, Bill Clinton issued 364, George Bush 291, and Barack Obama 276. The American Presidency Project at maintains a list of all executive orders.

In the last several years, partisan and political gridlock between Congress and the president has led the latter into using executive orders as a way of addressing issues or creating rules of laws in the absence of explicit congressional action. The Obama Administration through the EPA issued rules regulating carbon emissions. Yet in Murray Energy Company v. Environmental Protection Agency, U.S.;136 S.Ct. 999; 194 L.Ed.2d 18 (2016) in a suit brought by more than two dozen states and several utility companies, the Supreme Court in a 5-3 vote issued a stay on the rules pending review by the Court of Appeals. In United States v. Texas, U.S.; 136 S.Ct. 2271 (2016), the Supreme Court deadlocked 4-4 and issued a per curiam decision that upheld a lower decision that issued an injunction to prevent enforcement of an executive order or program entitled Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which would provide legal presence for illegal immigrants who were parents of citizens or lawful permanent residents. This decision effectively ended President Obama's effort to use an executive order to effect immigration reform. The lower court decision is provided in this book.

While many criticize executive orders as a way to circumvent Congress and the separation of powers process, there is no question that these orders are a major part of federal executive power that is unlikely to disappear in the future. However, as should be clear, presidents are not kings and do not have any inherent power to issue orders. Their authority must come from the Constitution or law, subject to limits. Nor are presidents like Captain Picard able simply to say "make it so" and it will happen. Once presidents do issue executive orders they carry the binding force of law and they are hard to repeal or undue. This will make it difficult for Trump to undo except a very few of Obama's recent executive orders. Conversely, moving forward, any of Trump's orders will have to follow a specific process to have the force of law, and there are many things he simply cannot order.

Finally, when one looks at the executive orders Trump has already issued, they really are so vague and general that they really do not do anything. His first on Obamacare did not really order anyone to do anything, and the executive order on the Mexican wall too was vacuous and could not really command anything, especially when it required an appropriation of money that Trump did not have. In many cases, these "executive orders" seem more like press releases or public relations than real legally-binding executive orders.