Executive Orders

From the MARCH/APRIL/MAY 2017 PNL #855

by Eric van der Vort

Donald Trump has been very busy since Inauguration Day. He’s issued a number of executive orders (EOs); banning people from Muslim majority countries, undoing President Obama’s climate change protections, restructuring the executive branch by reorganizing “unnecessary and redundant federal agencies,” and ordering construction of a border wall with Mexico.

He has done all of this and more unilaterally, without many speed bumps along the way. The courts have struck down parts of his travel bans or halted their enforcement. Other lawsuits will be filed and Congress might even refuse to fund them in budget allocations or through specific legislation. But the reality is that the president has a great deal of unilateral authority, and there isn’t much that anyone can do about it.

What is an Executive Order?

Every president since George Washington has issued EOs. The Constitution, which is written more as a framework than a detailed blueprint for governing, does not mention EOs, but it does grant the president the executive power of the United States. It invests him with broad powers as commander-in-chief and declares that he shall “take Care that the Laws be faithfully executed.” Presidents use this vague authority to create a number of informal ways to exercise power, including issuing EOs.

EOs give instructions to other parts of the government under the president’s control to act or behave in certain ways. The president is commander-in-chief of the military and an extensive federal bureaucracy charged with carrying out the laws established by Congress. Issuing executive orders allows the president to shape policy in those agencies without needing Congressional approval or input. Examples of these are when Lincoln used this power to suspend the writ of habeas corpus and to issue the Emancipation Proclamation or when FDR’s military used it to establish the system of Japanese internment. Truman issued an EO to integrate the armed forces, and Eisenhower issued one to support integration of Little Rock’s schools.

What can we do about Executive Orders?

The Supreme Court has ruled that EOs have the force of law as long as they are based in some constitutional or statutory authority given to the executive branch. They enter the federal record in the same way legislation does, and they are difficult to overturn. The courts can intervene on some EOs, but they are only likely to do so for a compelling reason. Trump’s travel bans are legally suspect because of their overt discrimination against Muslims and Islam, which violates US constitutional law. The travel bans are an exception to the general idea that EOs are hard to undo. Similarly, Congress can refuse to fund parts of an EO, but this is unlikely given partisanship in the legislature.

The most effective method to reverse an EO is to elect a new president who will undo the previous president’s actions.

Courts won’t strike down most or even many EOs, but the work of legal groups to mitigate the damage EOs can do should not be underestimated. The courts can be used to finesse and refine the impact of EOs in ways that undermine the president’s intended effect.

For example, litigation by Texas against Obama’s immigration EO delayed its implementation for years. The same principle is likely to be used by liberal states (e.g. New York, California) and civil society (e.g. ACLU, Planned Parenthood) to entangle many of Trump’s EOs in the implementation phase for years to come. One concrete example of this is that First Nations on or near the Mexican border may use the courts to resist the border wall.

Executive orders are one of the bluntest instruments in the president’s toolkit. Many EOs lead to significant harms or have big policy consequences as in FDR’s internment of Japanese-Americans. But some EOs may have no effect. While EOs have the force of law, they are unilateral actions that do not have the weight of both the Congress and the presidency behind them. The states, the courts, and the people can work to mitigate their harm.  i

Eric van der Vort is a Syracuse resident. He is a doctoral candidate at the Maxwell School and an organizer with the CNY Solidarity Coalition.