Ultra Vires


Executive Orders: Absolute or Absolutely Crazy?

President Trump has never been one to shy away from controversy, and his recent wave of executive orders have been nothing if not controversial.

In only the first month of his Presidency, Trump has signed a flurry of executive orders. A few notably tendentious examples are those ordering the construction of a wall along his country’s southern border with Mexico, a reduction of financial regulations, and increased intelligence-sharing in order to target drug cartels.

Arguably, President Trump’s most contentious action is the travel ban on refugees coming from seven Muslim-majority countries. One federal judge in Seattle has temporarily halted enforcement of this entire order—a decision upheld by the United States Court of Appeals for the Ninth Circuit. However, the order’s initial issuance and the chaos that ensued raised concerns about the legality of Trump’s orders generally.

Executive orders are beset by controversy because they do not require Congressional approval, allowing the president to bypass Congress.  Although no provision in the US Constitution expressly permits these orders, their authority is rooted in Article II of the Constitution, which states: “Executive power shall be vested in a president of the United States of America.” The broad source of this authority has created concern regarding the extent of the power of executive orders. Unfortunately for those dismayed by President Trump’s actions, executive orders have rarely been overruled and have been successfully used by former presidents to make significant policy changes.

Executive orders are typically perceived as an absolute application of the President’s power; however, in practice, the Constitution has a self-established system of checks and balances that limits presidential overreach. The federal judiciary, Congress, and the Office of Legal Counsel (OLC) are important overseers of executive orders.

As shown by the halt to President Trump’s travel ban, executive orders are subject to federal court review. They can be challenged in federal court and can have their carrying out enjoined, or be ruled unconstitutional. Review by the federal judiciary ensures that executive orders are not completely outside the scope of American Constitutional values.

Congress can also prevent the successful implementation of an executive order by refusing to fund the action. In practice, executive orders are only supposed to execute the law, not make it. As such, the immediate effect of an order to “build the wall” is to direct the US Secretary of Homeland Security to look into the planning and funding of a wall. Presidents can only make orders that spend money allocated by Congress, so refusal to provide financial support can prevent an order from being carried out.

Another limit that is often forgotten is that of the OLC, an office under the delegation of the Attorney General in the Department of Justice. This office is responsible for reviewing all proposed executive orders and presidential proclamations as well as advising on constitutional concerns and the limits of executive power. It also advises on the form and legality of all executive orders, although it does not address policy concerns of proposed orders.  

In light of these systems for review, it should be reassuring that executive orders are not a peremptory and absolute power. Nevertheless, given the broad extent of their authority and the President’s alarming invectives against the judiciary, an active public voice is crucial to keeping fundamental American values alive.

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