As often happens at the start of a presidency, Donald Trump is making use of the unilateral powers he now wields. He’s issued, so far, 12 executive actions — orders and memoranda — which can instantly change the course of American governance without any involvement by Congress. Use of such presidential directives ballooned in the early-to-mid 20th century. Some critics worry they can be overused, even abused, by the inhabitant of the White House.
1. What’s an executive action?
It’s a signed directive from the president that guides operations of the federal government and carries the force of law. The most formal and best known is the executive order. Presidents also can issue memoranda, to direct administrative matters, and proclamations, which can address ceremonial matters (like federal observances) or substantive ones (like trade policy).
2. What gives the president this power?
“The U.S. Constitution does not define these presidential instruments and does not explicitly vest the president with the authority to issue them,” according to the Congressional Research Service. “Nonetheless, such orders are accepted as an inherent aspect of presidential power.”
3. What directives has Trump issued?
The 11 he’s personally signed so far include a memorandum directing the U.S. trade representative to withdraw from the Trans-Pacific Partnership; memoranda reviving construction of the Keystone XL and Dakota Access pipelines; an executive order cutting federal funds to “sanctuary cities” that decline to enforce certain U.S. immigration laws; and a memorandum ordering “expedited reviews of and approvals for” new and expanded manufacturing facilities. (His chief of staff, Reince Priebus, also signed a memorandum, upping the Trump’s administration’s total to 12.) Trump’s very first directive, an executive order stating his desire “to seek the prompt repeal” of the Affordable Care Act, left many scratching their heads.
4. Are there limits on presidential directives?
Yes. An executive order or memorandum carries the force of law only if it’s “based on power vested in the president by the U.S. Constitution or delegated to the president by Congress,” according to the Congressional Research Service. So a directive “that implements a policy in direct contradiction to the law will be without legal effect” unless it’s “justified as an exercise of the president’s exclusive and independent constitutional authority.”
5. Who can change an executive action?
Only the sitting president can overturn one, by issuing another one. That’s what Trump did with his Jan. 23 memorandum forbidding international nonprofit organizations that receive federal money from providing abortion services. Specifically, Trump revoked a 2009 Obama memorandum that in turn had revoked a 2001 George W. Bush memorandum. Executive actions don’t require approval from Congress, and Congress can’t overrule them if they are rooted in the president’s constitutional authority. What Congress can do to undermine any executive action is to pass legislation that makes carrying out the order impossible, such as denying funding to a position or office the president creates.
6. Are Trump’s 12 actions a lot?
He’s off to a torrid pace, although one that’s likely to slow down. According to the Pew Research Center, Barack Obama issued 277 executive orders during his eight years in office, or 35 per year, down slightly from 36 per year by George W. Bush and 46 per year by Bill Clinton. The champion of executive action was Franklin D. Roosevelt, who issued 3,721, or an average of 307 per year.
7. Why did FDR issue so many?
To say he had a broad sense of presidential power would be an understatement, since he tried to reshape the Supreme Court and broke an unwritten two-term limit by seeking and winning four terms. There also was the matter of being president during the Second World War. Among his orders was a notorious one, in 1942, granting the War Department broad powers to create military exclusion areas that resulted in more than 110,000 Japanese Americans being forced from their homes into internment camps.
8. What’s the concern?
As might be expected, the party not in power often expresses concern about the president’s use of executive actions. So can people or businesses affected by such actions. Steel companies challenged a 1952 executive order by President Harry Truman giving the commerce secretary possession of most steel mills to avert the effects of a strike. In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court struck down Truman’s action as an improper intrusion onto Congress’s turf.
The Reference Shelf
- The Congressional Research Service report on presidential actions.
- Mayors of sanctuary cities aren’t impressed with Trump’s executive order.
- Bloomberg View columnist Cass R. Sunstein digs into the memorandum signed by Priebus.
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The White House lists of Trump’s executive orders and memoranda.
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The American Presidency Project has tallied executive orders of all 45 presidents.
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The Harvard Political Review found a correlation between less congressional legislation and more executive actions.
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The American Bar Association explains how executive order documents are formatted and numbered.
Source: Bloomberg
