Executive orders have the power to be socially transformative in US politics.
Bryan Cranston, Swinburne University of Technology
US President Donald Trump has signed a flurry of executive orders and actions in his first week-and-a-half in office. These have ranged from those starting the process to build a border wall with Mexico and withdraw from the Trans-Pacific Partnership to construction of the Keystone XL and Dakota Access oil pipelines.
But the executive order that has gained the most attention is the one that suspends the processing of all visa applications for people from seven majority-Muslim nations, and temporarily halts America’s refugee intake.
But what are executive orders? And what power does Trump wield with them?
What is ‘executive power’?
The governing principle of the US government is the “separation of powers”. The US has three separate branches of government: the executive (the president), the legislature (Congress) and the judiciary (including the Supreme Court).
As president, Trump is the head of the executive branch. This encompasses federal cabinet departments and the military. The executive is responsible for implementing the laws Congress approves. The judicial branch ensures these laws align with the US Constitution.
The president does have limitations on their power, however. The president may not authorise action in an area in which Congress has constitutional authority without congressional approval. For example, while the president can call for taxes to be raised or lowered, only Congress can approve such an action.
Notably, the president cannot declare war. The president can, however, authorise military action short of a war declaration. In such cases, Congress’ role becomes one of oversight: it approves funds to support these military activities.
What are executive orders?
Executive orders stem from Sections 2 and 3 of Article 2 of the US Constitution. This states:
The executive power shall be vested in a president of the United States of America.
An executive order is essentially a directive from the president about how they want federal agencies of the executive branch that report to them to use their resources to implement and execute the laws approved by Congress, as interpreted by the administration.
Do they require congressional approval?
Congress has no role in approving an executive order, nor can it overturn such an order.
If Congress does not like an executive order then its only option is to pass a new law limiting the order’s specific actions, and/or limit/end funding for the order’s implementation. But any such law will need two-thirds majority support in the Senate to be safe from the president’s ability to veto legislation.
If Congress does not act, or is unsuccessful in changing the law, then the other option is to challenge the legality of the executive order in the courts.
If a court rules an executive order is illegal or unconstitutional, then the president would almost certainly appeal that decision to the Supreme Court. If the appeal is unsuccessful because the executive order deviates from “congressional intent”, or is seen to exceed the president’s constitutional powers, then the implementation of the order in that form must cease.
If, however, the Supreme Court upholds the order, it can remain in place until Congress changes the law.
How does Trump fit with other presidents?
Although Trump appears to be issuing many executive orders, he issued only one more than Barack Obama did during his first week in office in January 2009.
During his eight years in office, Obama signed 276 executive orders – slightly fewer than George W. Bush’s 291. In contrast, two other recent two-term presidents, Bill Clinton and Ronald Reagan, signed 364 and 381 respectively.
These numbers are dwarfed by the 3,721 executive orders authorised by Franklin Roosevelt during his 12 years in office.
How transformative are executive orders?
Executive orders are instructions to federal agencies to implement approved laws in accordance with the inclinations and political leanings of an administration. As such, they have the power to be socially transformative.
Notable examples include Abraham Lincoln’s Emancipation Proclamation of 1863, which stated “all persons held as slaves … are, and henceforward shall be free”, and Harry Truman’s 1948 order that authorised the desegregation of the armed forces.
On his second day in office in 2009, Obama rescinded his predecessor’s authorisation for the CIA to use water-boarding as a method of interrogation.
Perhaps the executive order that most resembles Trump’s temporary suspension of visas to citizens of certain Muslim-majority states is Franklin Roosevelt’s 1942 creation of Japanese internment camps.
At the time, the law authorised the US government to remove any people from military areas as deemed necessary or desirable. During the 1940s, the majority of US residents of Japanese citizenship or ancestry lived on the west coast. So, with fear gripping the nation post-Pearl Harbour, Roosevelt designated the entire west coast as a military area. This enabled the military to summarily detain and forcibly relocate more than 110,000 residents based on ethnicity.
This executive order was found to have been based on racism with little evidence of a Japanese threat. It resulted in the Reagan administration paying out almost US$2 billion in compensation in 1988.
What does this mean for Trump’s executive orders?
Although congressional Democrats have been vocal in opposing most of Trump’s executive orders, they appear to have little support from Republicans to enact the legislation needed to change them.
Congressional Republicans are more critical of Trump’s visa-suspension order. Several senior senators, including Armed Services Committee chair John McCain and Foreign Relations Committee chair Bob Corker, have publicly called for an immediate change in administration policy.
However, to date, Senate Majority Leader Mitch McConnell and House Speaker Paul Ryan appear unwilling to support a congressional challenge to Trump’s authority.
This leaves the courts.
Trump’s visa-suspension authorisation is facing a swathe of legal action. The American Civil Liberties Union and 15 state attorneys-general (and one Republican governor) have launched legal action to stop the order. It is almost certain to end up in the Supreme Court because if any of the challenges are successful, then the administration will appeal – as will the plaintiffs if they are unsuccessful.
The court’s ideological leanings are currently four liberal members, three conservative members and one “swing” vote – with one vacancy. This means the best-case scenario for Trump appears to be a tied vote, which would then revert to the original federal court decision.
Bryan Cranston does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.