Trump Tests the Limits of Executive Orders
Making policy and passing laws is supposed to be difficult and should be left to the messy channels established by the Constitution.
Well before President Donald Trump returned to office, his supporters boasted that he would start the second term with a flurry of executive actions. The new president exceeded expectations with an avalanche of pardons, orders, and edicts on matters great and small. Wide-ranging in their scope, the orders "encompassed sweeping moves to reimagine the country's relationship with immigration, its economy, global health, the environment and even gender roles," noted USA Today.
Some should be welcomed by anybody hoping for more respect for liberty by government employees. Others extend state power in ways that are worrisome or even illegitimate. All continue the troubling trend, over the course of decades and administrations from both major parties, for the president to assume the role of an elected monarch.
Because executive branch officials interpret and enforce thickets of laws and administrative rules under which we try to live, guidance from the boss is powerful. Interpreted one way, a rule regulating unfinished gun parts leaves people free to pursue their hobbies; interpreted another, those owning the parts are suddenly felons. The president can push interpretations either way.
Executive orders are basically interoffice memos from the boss to executive branch agencies. That doesn't sound like much—and at first, historically, they weren't. Executive orders evolved into their modern form from notes and directives sent by the president to members of the Cabinet and other executive branch officials. Nobody tried to catalog them until 1907.
"If it seems as if more recent presidents have had more power than even Washington or Lincoln, it's not an illusion," Harvard Law School's Erin Peterson wrote in 2019. "The last three presidents in particular have strengthened the powers of the office," including through executive orders.
President Joe Biden, who took office in 2021, was told to "ease up on the executive actions, Joe" by even the sympathetic editors of The New York Times after a flurry of executive orders that set a new record up to that point. "These directives," the Times editors wrote, "are a flawed substitute for legislation." Sympathetic to his policies, they pointed out the orders could be reversed by a future executive.
Inevitably, and understandably, many of Trump's actions upon assuming office for the second time have involved reversing Biden's orders—some of which had themselves nullified Trump's first-term actions. It's a battle of government by decree with the advantage going to whoever currently holds the presidency and a pen.
Some of Trump's executive orders are very welcome, indeed, for those of us horrified by federal agencies pushing the boundaries of their power.
"The vicious, violent, and unfair weaponization of the Justice Department and our government will end," Trump said in his inaugural address regarding an order intended to punish politically motivated use of government power. "I also will sign an executive order to immediately stop all government censorship and bring back free speech to America," he added of another.
But other orders seek to exercise power beyond the boundaries of presidential authority—or even the power of the federal government. One executive order purports to redefine birthright citizenship so as to exclude those who are born to foreign parents illegally, or legally but temporarily, in the United States.
"This is blatantly unconstitutional," argued George Mason University law professor Ilya Somin, since the 14th Amendment "grants citizenship to anyone 'born….in the United States and subject to the jurisdiction thereof.' There is no exception for children of illegal migrants." The issue has also been addressed by the U.S. Supreme Court in the past, which found that the provision applies to anybody subject to American law—basically, all nondiplomats.
Likewise, wrote Somin, Trump's plan to invoke the Alien Enemies Act to deport immigrants who commit crimes runs afoul of the fact that the U.S. is "not in a 'declared war' with any foreign nation."
These issues will be hashed out in court. But flaws in these ideas could have been exposed during congressional testimony and debate. It's especially difficult to justify many of these orders given that Republicans hold the majority in both houses of Congress. But even if the legislature was divided or controlled by Democrats, the federal government consists of three branches intended to slow action and encourage deliberation.
Trump is on firm and even welcome ground when he uses his presidential power to rein in executive agencies and undo the excesses of his predecessor. But making policy and passing laws is supposed to be difficult and should be left to the messy channels established by the Constitution.
