Q&A of the Day – What President Trump Can (and Can’t) Do Via Executive Orders
Each day I feature a listener question sent by one of these methods.
Email: brianmudd@iheartmedia.com
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Today’s Entry: Submitted via talkback asking about what can and can’t be done via presidential executive orders.
Bottom Line: President Trump’s prolific first week of policy changes included over 200 total executive actions of which specifically 35 were executive orders issuing sweeping changes from Biden administration policies, commonly reinstating policies Trump had in place during his first administration. By way of comparison President Trump only signed seven executive orders at the same point in his presidency eight years ago and President Biden, who was busy undoing much of what Trump had put in place four years ago, had a total of 24 executive orders by the end of January 2021. What we’ve seen is a record pace for the use of executive authority in carrying out policy.
Among President Trump’s 35 orders through the first week of his presidency we’ve had the resumption of southern border policies, including the Remain in Mexico policy, ending of the Biden’s administration's CBP 1 program to fly asylum seekers to the US and more. The orders also extended beyond what Trump had done previously, for example declaring two national emergencies, one on the southern border and another pertaining to U.S. energy policy. The president also issued an order seeking to revoke birthright citizenship from children born in the US in which at least one parent isn’t legally established within the United States – that's the one order that’s been legally impeded from taking effect as of now as a federal judge stayed the order. And that’s a good jumping off for this conversation.
Nearly 14,000 executive orders have been signed by American presidents starting with George Washington. EOs are constitutionally protected directives under Article II of the U.S. Constitution (executive powers) and addressed under Title 3 of the Code of Federal Regulations by presidents that have the full effect of law. Only a president can sign or rescind executive orders. That speaks to both the strength and weakness of the use of executive orders. While executive orders can be issued and acted upon much more quickly than passing legislation that’s then signed into law by the president, they’re also just as easily removed by future presidents with differing views as we’ve commonly seen.
In terms of what a president “can” and “can’t” do via executive orders... I’ll use a familiar analogy. People will often ask if they can sue for “X”? The answer is almost always yes. You can attempt to sue just anybody or any entity for just about anything. The question is whether there’s a case to be made or if the lawsuit is frivolous. Executive orders are similar. The constitution does not specifically cite what a president can and can’t do via executive orders. With that said...
Effectively, the only restrictions on the use executive orders pertain to areas of governance that are specifically designated to other branches of government through the constitution. Those include:
- Enacting laws
- Declaration of war
- Taxation
- Government funding/spending
- Legal interpretation of laws
- Cabinet appointments requiring senate approval
Obviously, that leaves broad authority for a president to enact policy which President Trump has made quick use of in attempting to achieve his agenda. Of course, with the balance of powers in place, any legal challenges to the legal authority of executive orders are determined in the courts.
34 of the 35 orders Trump issued remain in force, with the potential for the ruling in the birthright citizenship case to eventually be overturned. While the president has been historically aggressive in his use of executive actions, his early rate of success (97%) in pushing through policy changes this way has proven to be immediately effective. Still, for lasting policy that can transcend administration changes, laws are needed. That, for example, is why the Laken Riley Act is an important first law. It won’t effectually impact the current illegal immigration and deportation policies that Trump has put in place, however when signed into law it will ensure that much of the policy carries on well into the future.