Executive Orders: The Power to Dictate or to Command?

If you’ve been following the media, you may have noticed that President Trump has a knack for signing documents—especially executive actions. As of January 20, President Trump has signed two proclamations, ten presidential memorandums and seven executive orders. These seven executive orders are perhaps the most notable actions of his presidency thus far. The majority of his orders have related to either immigration, border protection, or energy policies. These orders have initiated President Trump’s long talked about wall and the Keystone Pipeline, as well as the banning of migrants and refugees. Each of these orders has incited political dissent amongst different groups of the American people. But are they right to be angry or is President Trump acting within his powers? Is it the case that the president only holds the power to carry out the laws created by Congress, and not create his own? Doesn’t Congress possess the power of the purse, thus he’ll require funding from them in order to pursue these projects? And perhaps we should be wondering, what even is an executive order?

Executive orders are an interpreted power. In Article two, Section three of the Constitution, the president is trusted to “take Care that the laws are faithfully execute.” Executive orders serve as a channel or conduit for the president to fulfill his duty. By issuing these orders he instructs the departments of the US Government how to faithfully execute the laws designed by Congress.

Furthermore, executive orders aren’t a new phenomenon in presidential power. The first executive order was actually given by George Washington in 1793 to prosecute US citizens who were involved in the conflict between the United Kingdom and France. Washington did this because Congress was not in session. Washington would go on to decree even more executive orders. However, subsequent presidents, until President Grant, would decree no more than a few dozen during their time in office because they believed that these actions would resemble that of a king. This is best seen in Federalist Paper no. 69 which looks at the character of the executive and how the president is distinct from that of a king.

We don’t see the number of executive orders increase substantially until President Wilson and FDR who reshaped the role of the president during wartime situations, whether for the better or worse. (FDR used an executive order to place Japanese-Americans in internment camps during the war).

With this in mind, in the post-war period after Harry Truman the number of executive orders has remained relatively consistent from president to president regardless of their party. The average number of executive orders per president in the post-war era is 260 orders.

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Data taken from various sources: 1, 2 , 3, 4, 5, 6

So executive orders aren’t new, nor have their uses really changed since WWII. So what exactly do they do?  The president has control of the executive branch of government, and as a result he can affect how the laws are carried out and how regulations may apply. If you’ve ever seen the text of one of these documents, you may notice that it was littered with language and phrases like “to the maximum extent permitted by the law.” This is because, at least in theory, the president does not have the authority or the power to create new laws without Congress. Instead, his orders change the way in which the executive branch can legally interpret and carry out laws. In essence, President Trump, like presidents before him, is pushing the political envelope. Presidents use executive orders as a form of increasing their autonomy in the small amount of wiggle-room given to them by the Constitution.

Now you may be asking, how does President Trump plan to begin construction of the wall without congressional approval and funding? Here, President Trump has prioritized the reallocation of resources—labor and capital—to be put forth for the construction of the wall. These federal agencies can use whatever discretionary funding they may still have in their budget towards these projects.

So are executive orders absolute? If they violate the Constitution and Bill of Rights can they still stand? The short answers are no and sort of. Executive orders can be declared unconstitutional by the courts if they violate either the Constitution or the Bill of Rights. This was seen in the Supreme Court case Youngstown Sheet & Tube Company v. Sawyer, in which President Truman issued an executive order that instructed the Secretary of Commerce to take over the various steel mills that were at risk of halting operations due to poor labor relations. In a 6-3 decision, the Supreme Court declared that the President lacked the constitutional power to seize the mills, and as a result Truman’s executive order was declared unconstitutional. On the opposite side, in Korematsu v. United States, again in a 6-3 decision, the Supreme Court upheld that FDR’s executive order allowing for the internment of Japanese-Americans was constitutional and in accordance with the president’s war powers. Korematsu argued that his constitutional rights had been infringed upon by the government. The Court decided that the rights of Japanese-Americans could be curtailed during times of war, especially during circumstances of “emergency and peril.”

With this in mind, the other branches of government do possess the power to limit the actions of the President. Now it’s just a question of if they do it.

So what is the future of President Trump’s executive orders? Some have argued that President Trump’s “Muslim-ban” has plunged the US into a constitutional crisis.We’ve seen protests across the country erupt in response to this single executive order. While the administration may argue that the bill is not discriminatory, it nonetheless has substantive and discursive effect. Furthermore, the Federal Courts of New York and Massachusetts granted a preliminary injunctions against the executive order as the Courts found it have fulfilled the criteria of causing “substantial and irreparable harm.” With this in mind, the other branches of government do possess the power to limit the actions of the President. Now it’s just a question of if they do it.

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