Executive orders have been prominently featured in the news lately, given Donald Trump’s highly controversial series of orders that characterized his first few weeks in office. During the Obama administration, executive orders received similar treatment—the opposing party constructed a narrative that the executive order once created holidays and was now a way for the President to act unilaterally; that executive orders offset the balance of power among branches; that they are unconstitutional. But after a long news week, in which a large part of the Republican rhetoric was borrowed by the Democrats, I got curious: what is the legal precedent for executive orders? How constitutional are they? Where does the Supreme Court draw the line? Get ready: we’re in for a long series of grey areas and power grabs.
Dry but Important History & Legal Precedents
The history of the executive order is somehow even more long and complicated than I thought it would be. To start off, executive orders are not directly mentioned in the Constitution, but they have been used by every president since George Washington (with the notable exception of William Henry Harrison). Presidents derive the authority for executive orders from Article II of the Constitution, often citing the line “he shall take care that the laws be faithfully executed.” They also cite the implied support of Congress in these decisions. Indeed, when George Washington first used the executive order in 1793, and when Abraham Lincoln used it in 1861, the two presidents later gained authority from Congress to support their actions. Generally, executive orders supplemented acts of Congress. The frequency of executive orders was also initially much lower—most presidents used less than 50 until Andrew Jackson.
Teddy Roosevelt truly changed the nature of the executive order, and drastically increased the frequency of their use. To put this in perspective, Mckinley before him used 185 executive orders; Teddy employed 1,081 throughout his presidency. Roosevelt believed that the president “was a steward of the people... it was not only his right but his duty to do anything that needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws.” Woodrow Wilson and F.D.R. used times of crisis (World War I and the Great Depression, respectively) to expand on this belief and thus increase executive power.
However, the Supreme Court began to reel in this power during the Korean War, when Truman tried to authorize the Secretary of Commerce to seize the majority of American steel mills via executive order. This was similar to many of FDR’s executive orders, which authorized state seizure of industries during a time of war or crisis. However, Congress did not support the measure, and the Court failed to find constitutional basis for it. They also issued a set of basic guidelines for executive authority: 1. The President has the most authority when they act “pursuant to an express or implied authorization of Congress.” 2. When the President has neither Congressional approval nor denial of power, there is a “zone of twilight” in which the “distribution [of authority] is uncertain.” Here, constitutionality is taken on a case by case basis. 3. When the President acts without the will of Congress, he has the least amount of authority, and “he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the entire matter."
These standards have essentially set the precedent for all future executive orders. Both Congress and the Supreme Court can step in where executive orders are involved. Courts can uphold executive orders or nullify them if they do not see that the President has sufficient authority to enforce them, or if they are acting without the will of Congress. Congress can explicitly nullify any executive order, especially if the President’s authority in the situation is shaky, or Congress can neglect to extend an executive order when it expires.
However, while it seems like the Courts and Congress both have the ability to curb any executive order that goes too far, they do not wield this power as much as one might expect. Especially in regards to national security and foreign policy, the Courts normally rule that these areas are within executive authority, and often uphold orders that fall within this sphere.
How Does Donald Trump Measure Up?
While many of Donald Trump’s executive orders are controversial, especially the order prohibiting travel to the U.S. by citizens of seven Middle Eastern countries, orders of this nature have been upheld by the Supreme Court and Congress before. For instance, Executive Order 9066 authorized the Japanese internment camps of WWII. The Courts upheld this, saying, “Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.”
Thus, the Supreme Court (especially with Donald Trump’s nominee in place) could very well uphold Trump’s orders on immigration. And, given that Congress is heavily Republican, it is unlikely that they will take any action against his order.
Here’s the thing that remains consistent. Many of the major uses of the executive order, from George Washington and Abraham Lincoln to Wilson, F.D.R., and Truman to George W. Bush, were used during times of war and crisis. Presidents cited national security to justify an increase in power, Abraham Lincoln suspended habeas corpus, and George Bush authorized the NSA to listen to phone calls made by U.S. citizens without a warrant. Donald Trump is using the same tactic of fear to justify building his wall and his ban on travel to the United States from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Because executive orders aren’t actually part of the Constitution, their legality is entirely determined by precedent—thus, if these stand, it could set a new precedent, one that allows the president to possibly violate aspects of the 14th Amendment and the Bill of Rights in the name of national security, acting without the will of Congress or the Constitution. And while the orders themselves might not last, that upset in the balance of power certainly would.
For more information on the history of the executive order, “Executive Orders and Proclamations” by John Contribus is a good introductory article, full of even more dry but important history and legal precedents!
*I used information from the American Presidency Project for my numbers on executive orders. Because executive orders have had many different titles and documentation processes, statistics vary slightly from source to source.