Executive Orders – What Are They?
With the Trump administration in full swing, lots of changes are coming down the pipe – most notably in the form of executive orders. The Obama administration utilized these documents to push Obama’s agenda into law – Mr. Trump appears to be doing the same. But what exactly do executive orders accomplish?
Executive orders do not require Congressional approval in order to go into effect, as we have seen with the somewhat chaotic implementation of Mr. Trump’s immigration order. The orders have the same legal weight as a law that goes through the traditional channels of Congress, and in Mr. Trump’s case, although he has a sympathetic Congress, they are slow. Mr. Trump appears to be using the Executive power to push his campaign promises through at record speed.
What happens if an executive order gets passed that Congress does not like? Usually, the only recourse available to Congress is to pass a law which would make the order difficult to implement or expensive. In Mr. Trump’s case – at least for now – this seems unlikely given the fact that his party holds a majority in both chambers. However, an executive order is still subject to judicial review. In Mr. Trump’s case, we have already seen the exercise of checks and balances within the Constitution, as the immigration order went before a Federal Appeals court just recently. If the court determines that the executive order is unconstitutional, it can be erased. As the Supreme Court is currently still with 8 members, this could be a stalemate. The same thing has happened to one of Mr. Obama’s executive orders (concerning immigration, too!). It went all the way to the Supremes, shortly after Justice Scalia’s death, and the decision was 4-4. So, nothing happened to the order – it remained in place.
The only other way an executive order can be erased is by a new administration issuing its own order basically repealing the prior administration’s laws. Interestingly enough, Mr. Trump has not seemed to be that concerned with rolling back Mr. Obama’s own executive orders – at least not yet. The Trump Administration made a statement that it would not repeal Obama’s executive order pertaining to prohibitions on workplace discrimination based on sexual orientation or gender identity, despite the fact that one of Mr. Trump’s campaign promises was to target Mr. Obama’s executive actions.
Executive actions must be aimed at the people and agencies inside the government, rather than the citizenry at large. So, for example, the immigration order recently implemented was aimed at the Department of Homeland Security, requiring that it follow certain procedures in allowing immigrants from certain countries to enter the country. This order has been so interesting because it was fairly disastrously implemented. Some reports have stated that White House leadership elected to disallow current visa and green-card holders from entry into the country, as well as people who enjoyed dual citizenship from the banned countries and another, like the United Kingdom, despite legal advice from the Department of Homeland Security. Stories of people with layovers in Chicago or New York on their way home from vacation were refused entry, leaving them stranded in the airport or forced to leave the country. If Mr. Trump wants his executive orders to last, he needs to make them more firmly rooted in law, and act with greater transparency and more equitable implementation. Otherwise, his orders will experience bipartisan criticism, which could result in a cut to funding to implement the order.
The future is uncertain under Mr. Trump, and this immigration order will be a fascinating test of the balance of powers between America’s executive branch and its judiciary. Furthermore, if Mr. Trump grows in confidence, his pride could goeth before the fall, leading to Congressional bipartisan support to shut down some of his future orders before they can be fully realized.