Jan. 21 (UPI) — Before his inauguration, Donald Trump promised to issue a total of about a hundred executive orders once he became president again. These orders reset government policy on everything from immigration enforcement to diversity initiatives and environmental regulations. They also want to undo much of Joe Biden’s presidential legacy.
Trump is not the first US president to issue an executive order, and he certainly won’t be the last. My own research shows that executive orders have been a mainstay in American politics — with limitations.
What is an executive order?
While the Constitution clearly articulates familiar presidential tools, such as vetoes and appointments, true executive power comes from reading between the lines.
Presidents have long interpreted the Constitution’s Article 2 clauses—such as “the executive power shall be vested in a President” and “he shall cause the laws to be faithfully executed”—to give them full authority to enforce the law through enforce executive power. branch office, in every possible way.
One important way they do that is through executive orders, which are presidential written directives to agencies on how to implement the law. The courts consider them legally valid unless they conflict with the Constitution or existing statutes.
Executive Orders, like other unilateral actions, allow presidents to make policy outside the regular legislative process.
This leaves Congress, notoriously polarized and gridlocked, to respond.
Executive orders are thus unilateral actions that provide several benefits to presidents, allowing them to act first and act alone in policymaking.
How have they been used historically?
Every U.S. president has issued executive orders since they were first systematically cataloged in 1905.
In March 2016, then-presidential candidate Donald Trump criticized President Obama’s use of executive orders.
“Executive orders came about more or less recently. No one has ever heard of an executive order. Then suddenly Obama – because he couldn’t get anyone to agree with him – started signing them like they were butter.” Trump said. “So I want to largely eliminate executive orders.”
Little of this statement is true.
Obama signed fewer orders than his predecessors – an average of 35 per year. Trump spent an average of 55 per year.
Against conventional wisdom, presidents have become less dependent on executive orders over time. Indeed, modern presidents used drastically fewer orders per year – an average of 59 – than their pre-World War II counterparts, who averaged 314.
Executive Orders have been used for everything from routine federal workplace policies such as ethics pledges to the controversial 2017 travel ban that restricted entry into the United States.
They have been used to manage public lands, the economy, the civil service and federal contractors, and to respond to various crises, such as the Iran hostage crisis and the COVID-19 pandemic.
Presidents often use them to advance their most important agenda items, creating task forces or policy initiatives and directing rulemaking, the process for formally translating laws into codified policy.
Limitations in their use
Why don’t presidents always issue executive orders, a seemingly powerful policy tool? Because they pose serious limitations.
First, executive orders may not be as one-sided as they seem. Drawing up an order involves a time-consuming negotiation process, in which various authorities negotiate its contents.
Second, if executive orders are issued without proper legal authority, they can be overturned by the courts — although that doesn’t happen often.
Trump’s 2017 travel ban faced several legal challenges before it was written in a way that could satisfy the court. On the other hand, many of his initial orders were not subject to legal scrutiny because they simply asked agencies to work within their existing powers to change important policies such as health care and immigration.
Another barrier is Congress, because it gives presidents the legal authority to make policy in a given area. By withholding that authority, Congress can prevent presidents from issuing executive orders on certain issues. If the president does issue the order, the court can overturn it.
Lawmakers can also punish presidents for issuing executive orders they don’t like, by sabotaging their legislative agendas and nominees or gutting their programs.
Even a polarized Congress can find ways to punish a president for an executive order he doesn’t like. For example, a committee can hold an oversight hearing or launch an investigation, both of which can reduce a president’s public approval.
Today, Congresses are equipped to impose these restrictions, and they often do so on ideologically opposed governments. This is why scholars find that modern presidents issue fewer executive orders under divided government, contrary to popular media narratives that present executive orders as a way for the president to bypass Congress.
Finally, executive orders are not the final word in policy. They can be easily retracted.
New presidents often reverse previous orders, especially those of political opponents. For example, Biden quickly rescinded Trump’s guidelines that excluded undocumented immigrants from the U.S. census.
All recent presidents have issued repeals, especially in their first years. However, they face obstacles, including public opinion, Congress and legal restrictions.
In any case, executive orders are not as sustainable as laws and regulations.
Restrictions on Trump
Some of Trump’s executive orders, especially those targeting the economy, will require legislation since Congress is in control.
Although Trump inherits a Republican House and Senate, their majorities are marginal, and moderate dissenters could frustrate his agenda. Yet he will undoubtedly use all available legal authority to unilaterally translate his objectives into public policy.
But on the other hand, these guidelines can be overturned by the courts – or by the next president with the stroke of a pen.
This is an updated version of a story originally published on January 26, 2021.
Sharece Thrower is an assistant professor of political science at Vanderbilt University.
This article is republished from The Conversation under a Creative Commons license. Read the original article. The views and opinions expressed in this commentary are solely those of the author.