The Trump 2.0 Executive Orders Will Take Time to Sort Out
Some won't come to fruition due to legal hurdles.
Through the magic of the constitutional oath, citizen Trump will today become president Trump, and thus endowed with authority to sign executive orders and other directives that announce dramatic new policy directions from the Biden years. Trump says he will “sign dozens of executive orders—close to 100, to be exact.” Yet the full impact of today’s orders will take time to sort out. If past is prologue, some and perhaps many will not come to fruition due to legal and political hurdles.
What follows is some high-level context for understanding today’s executive orders. For broader historical context on Trump 2.0, check out my opinion piece this morning in the New York Times. It makes three points: (1) Trump’s pledges to wield executive power aggressively are not in themselves bad—our most eminent presidents did that; (2) bold presidential leadership has always been needed to make American democracy work; but (3) Trump’s aggressive uses of executive power are unlikely to succeed, for six reasons.
What is An Executive Order?
The first Trump 2.0 executive orders are reported to concern, among other topics, border security, deportations, energy production, climate policies, diversity issues, artificial intelligence, the civil service, trade, international agreements, the TokTok ban, pardons, perhaps birthright citizenship, and much more. Famous executive orders of the past include Truman’s order ending discrimination in the military; Lincoln’s order authorizing General Halleck to suspend the writ of habeas corpus; Trump’s travel ban order; Carter’s order blocking Iranian assets; and Reagan’s order governing U.S. intelligence activities. Four years ago today, President Biden issued seventeen executive orders, memorandums and proclamations.
Executive orders “are written instruments through which a President can issue directives to shape policy.” One often hears that modern presidents abuse executive orders, but this is misleading. An executive order cannot give the president any authority that he doesn’t already have. Every executive order must be based on a power that the president gets from somewhere else—basically, from the Constitution or a statute. An executive order is simply the mechanism through which the president announces that he is acting, or is ordering an executive branch entity to act, pursuant to some other legal authorities. An executive order has the force of law only if the underlying legal authorities support the order.
As a result, many famous executive orders never came to fruition because they were declared illegal by courts. This was true, for example, of Truman’s order directing the Commerce Secretary to seize steel mills, and of President George W. Bush’s order establishing military commissions. President Trump’s original travel ban order never became fully operational; it took three iterations before the Supreme Court upheld the ban. Other executive orders were ineffective due to political and legal obstacles that formed in response to the orders. On his third day in office, President Obama issued an executive order announcing that “the detention facilities at Guantánamo for individuals covered by this order shall be closed . . . no later than 1 year from the date of this order.” We know how that turned out.
An executive order is typically government-focused. It announces a presidential action or directs executive branch agencies to do something. There are other forms of presidential directive. A presidential proclamation communicates information to the public. It can be ceremonial (such as announcing a national holiday) but it can also be substantive and have legal implications for individuals. George Washington’s famous Neutrality Proclamation of April 22, 1793 announced that the United States would remain neutral in the wars among European nations and that the federal government would prosecute those who violate the law of nations. A president can also communicate information and directives through “memoranda, notices, determinations, letters, messages, and orders,” all of which can have legal implications. And a pardon is typically announced in a document called an “Executive Grant of Clemency.”
Whatever the label, the bottom line remains: The directives issued today cannot expand Trump’s power beyond what the Constitution and statutes confer on him.
Legal Authorization and Constraint, and Judicial Review
How to think about those underlying legal authorities that support presidential action? The devil is always in the details, and we’ll be analyzing those details in due course. But here are a few very general guideposts.
Article II of the Constitution, as enlarged by centuries of presidential aggrandizement and congressional and Supreme Court acquiescence, gives the president sweeping powers. Starting today Trump can, if he likes, exercise these powers to reorient U.S. foreign policy (Greenland and Panama are getting an early taste); to order the Justice Department to conduct criminal investigations; to announce an intent to withdraw from international agreements such as the Paris Climate Accords; and to grant a pardon for federal offenses. Trump will also have broad constitutional power to use offensive military force.
On top of a president’s formidable constitutional powers, Congress has by statute given the president multitudes of additional discretionary powers to determine domestic and foreign policy. Congress has enabled Trump, for example, to raise tariffs, to deport unlawful immigrants, to populate thousands of senior executive branch positions with loyalists, and to deploy U.S. armed forces as a domestic police force in broad circumstances.
Some of the just-mentioned constitutional and statutory presidential powers (pardons, investigations, many appointments, war powers) are as a practical matter not subject to judicial review. Other powers (tariffs, domestic deployment of the military) are subject to weak forms of judicial review. In these and many other circumstances, the main constraining factors in the past have been non-legal norms, executive branch resource limitations, and politics.
Many other things that Trump wants to do—and likely most orders issued today—are more constrained by extant law and subject to normal-to-robust judicial scrutiny. Trump cannot just snap his fingers and change Biden’s environmental regulations, or impound federal funds, or expel millions of unlawful immigrants, or fire “deep state” officials. Congressional statutes and the Constitution constrain these and many other elements of presidential power. Trump administration lawyers can try to interpret away these constraints, but in the end it will be for the Supreme Court to decide. The Court blocked Trump’s excesses quite a lot in his first term. I believe it will do so in his second as well, in cases where it has jurisdiction to do so—especially if Trump and his administration project disrespect for the law.
And finally, there are many matters on which Trump cannot act without Congress’s approval. The “big, beautiful bill” that he is seeking from Congress early in his term contains policies—tax cuts and tax cut extensions, new funding for border security and immigration enforcement, fundamental changes in energy policies, a debt ceiling extension, new asylum restrictions, defense spending boosts, and more—that a president cannot implement via executive orders.
Conclusion
“Wherever I can act on my own, without Congress, by using my pen to take executive actions, … that’s what I’m going to do,” said President Obama in 2014 when he signed an executive order to raise the minimum wage for federal contractors.
That is the presidential attitude toward executive orders, an attitude with a long history. Trump will wield this power today in ways designed for maximum symbolic effect. Some of these orders—pardons and revocations of security clearances, for example—will have an immediate impact. But most orders will involve complex legal issues, and Trump’s signature will not make them effective. That depends on the underlying law, which in many instances will take time to sort out.