What The Hell Is An Executive Order Anyway?
They’re not as powerful as they sound.
Welcome to the Glad You Asked series, a shame-free zone where we tackle topics you’re too embarrassed to ask even your BFF about. Don’t worry, we gotchu.
During his first 10 days in office, President Trump signed no fewer than 18 executive actions. One is an attempt to scrap the Trans Pacific Partnership. Another advanced construction of the Keystone XL and Dakota Access pipelines.
Some of these actions are more symbolic than practical, but all of them will change federal policy while bypassing Congress in the process.
In a democracy that prides itself on a system of checks and balances, here’s how such dramatic actions can be unilaterally enforced by one person.
First, remind me what an executive action is…
An executive action is an official document setting federal policy in the US.
An important distinction between laws and executive actions is the branch of government that creates them. The legislative branch (Congress) makes regular laws, while the executive branch (the president, vice president and the cabinet) simply executes laws by giving instructions to government agencies. When the president wants laws to be enforced in a specific way, he can write an executive action to clarify this intent.
To be clear, executive actions can’t change existing laws. For example, Trump’s order offering “relief” from the Affordable Care Act doesn’t repeal the law itself, but it does say that government agencies don’t have to enforce its financial penalties.
How are executive actions overturned?
When a new president takes office, they have the power to reverse any executive actions that were enacted by their predecessors. Congress can pass laws that overturn executive actions and the Supreme Court can also reverse executive actions by declaring them unconstitutional.
The power of executive actions
The clear benefit to executive actions is that policies change quickly with one signature. By contrast, it can take the House and Senate years (or even decades) to get a bill passed into law. But overall, laws passed by Congress have a broader scope and are more permanent than an executive action.
Executive actions are nothing new. Every US president except William Henry Harrison signed at least one order?—?and they often made drastic changes to policy and American life.
FDR, for example, signed a whopping 3,721 executive actions during his two terms as president?—?that’s more than our last 12 presidents combined. Other memorable actions include Abraham Lincoln’s Emancipation Proclamation of 1863, the Japanese-American Internment camp order given by FDR in 1942 and Harry Truman’s 1948 order to desegregate the army.
Trump’s actions solidify his stance on issues like torture and abortion, oil pipeline construction and the infamous border wall with Mexico. These actions’ controversial nature has caused Trump skeptics to question their legality. Historically, though, dozens of US presidents have signed actions of this magnitude.
Some scholars like Stuart Eizenstat, a lawyer who served in high-level positions during the Carter and Clinton administrations, believe executive actions are an important display of purpose early in a president’s term. “Executive orders are a way of getting off to a fast start and showing a sense of direction. … As long as they’re not abused, they’re perfectly permissible and even useful to set the tone of a new administration,” he tells The Intercept.
This view may be reassuring to Trump skeptics since many of the executive actions he signed are more symbolic than effective.
Take, for example, the executive order about the US-Mexico border wall. Sure, it asks for “the immediate construction of a physical wall on the southern border.” But the order actually instructs the Secretary of Homeland Security to “identify and, to the extent permitted by law, allocate all sources of federal funds for the planning, designing, and constructing of a physical wall.”
The key phrase here is “to the extent permitted by law.” You’ll find the same wording in nearly all of Trump’s 18 actions. Because while the president can tell the Department of Homeland Security to build a wall, the agency can only do it if Congress approves the funding for it. That’s a pretty big caveat.
Similarly, a draft executive order acquired by The New York Times states Trump may be preparing to overturn executive orders Obama signed broadening CIA interrogation practices and reopening “black site” prisons abroad.
Trump has expressed interest in reviving interrogation tactics like waterboarding which he says “absolutely work” and even “if it doesn’t work, [prisoners] deserve it anyway.” In relation to torture, however, Trump will likely run into opposition from his own party. “With respect to torture, that’s banned … we view that to be a matter of settled law,” John Thune, the Senate Republican Conference Chair, tells the Associated Press.
The bottom line is that whether Trump signs an executive order or tweets about it, he can’t change existing laws on his own. For example, he can only build the wall if Congress allocates the $38 billion in funding it would cost. Similarly, he can only reinstate torture tactics if Congress amends the current law.
There are some actions?—?like the action freezing federal hiring?—?that don’t require Congressional corroboration and take effect 30 days after signing. But the US government has a complex system of checks and balances (including impeachment) that has protected democracy for 241 years. Let’s have faith that it will continue to do so for the next four.