Executive orders give Trump lots of power, but there are limits
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The first weeks of President Trump's presidency has seen a wave of executive orders signed, all of which are controversial. Among other actions, the president has proposed making true on his campaign promise to "build the wall" along the U.S. southern border and, more recently, issued a travel ban on refugees coming from seven Muslim-majority nations.

There has been much written by the media, political scientists, members of the legal community and other pundits about the power and influence of executive orders. While I do not wish to minimize the importance of this power of the president, I believe that a fuller description and explanation of the limits on executive orders deserve to be aired, as well.

Despite the usual description of executive orders as a "unilateral power" of the president, this description is somewhat overblown.

First, few — if any — executive orders are self-executing. At least as importantly, there are many checks on the reach of executive orders outside the executive branch, and at least one major check within the executive branch.

In this article, I discuss four important limits on executive orders: the federal judiciary, Congress, the public and the Office of Legal Counsel. It is true that executive orders carry the force of law, but they are far less permanent than laws because they can be overturned with ease by subsequent presidents. And, like legislation passed by Congress, they are subject to checks and balances built into the governing system described in the Constitution.

The first three limits I mention above can be very public limits on the impact of executive orders. Indeed, one of the most famous cases in Supreme Court history, Youngstown Sheet and Tube v. Sawyer (perhaps better known as the Steel Seizure Case), is a public rebuke of executive overreach via executive order.

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While the source of contention in Youngstown — President Truman issuing an executive order contrary to congressional preferences — is not present in the early Trump administration, constitutional questions remain because the executive orders regarding the wall and the travel ban exist in what Justice Robert Jackson called the "zone of twilight" — when the president acts absent congressional support.

 

The federal judiciary consistently reviews executive orders, and while the vast majority of executive orders are not overturned by federal courts, some have been ruled unconstitutional by federal courts.

In the near-immediate wake of attempted enforcement, District Court Judge Ann Donnell issued a stay on Trump's travel ban.

The second and third limits on presidential power are Congress and the public, and because of the representative nature of the legislative branch, these limits often go hand-in-hand.

Famously, President Obama — like Trump — used an executive order to attempt to fulfill a campaign promise; in Obama's case, to close the detention center at Guantánamo Bay, Cuba, within a year of taking office.

Despite the president's action, Congress prevented this action by refusing to fund the effort. The effort was overwhelming, with a 90-6 vote in the Senate. Individual members of Congress spoke out publicly about preventing Obama from shifting detainees to domestic prison sites.

In the face of Trump's national security executive orders, we see pushback from Congress and individual members. Congress is not unified around paying for the wall. Several lawmakers, including Rep. Will Hurd (R-Texas), a Republican lawmaker whose district is the largest district along the border, have spoken against Trump's proposed wall as inefficient and unnecessary.

And despite moves to assure consideration for funding next week, doubt remains about whether fiscal conservatives on the appropriations committees have an interest or willingness to ask for billions of dollars from taxpayers.

Similarly, it should come as no surprise that members of Congress were adamant in their disapproval of Obama's suggestion to move Guantánamo detainees to domestic prisons. According to a contemporary poll, Americans were nearly united in opposition to that plan. In the face of mass protests about the travel ban, the White House retracted the ban on green-card holders.

The final limit is actually among the first, but is often overlooked. The Office of Legal Counsel (OLC), a small law office in the Department of Justice, is charged with reviewing proposed executive orders for form and legality. This means that the OLC can require alterations to ensure that an executive order is legal. It also means that the OLC can, and has, prevented executive orders from being issued, as it did during the Iran hostage crisis.

Given the duty of the OLC to ensure legality of executive orders, it is important and noteworthy that The Wall Street Journal editorialized that "The White House legal review was also slipshod. The President has wide discretion over refugee policies, and the overall Trump order is no doubt legal. But surely someone in the executive branch knew that anyone who touches down on U.S. soil is entitled to some due process before summary removal."

Though disputed by the administration, reports indicate that the OLC may have been left out of the process. If the reports are accurate, the legal fallout and confusion surrounding the poorly articulated order may have been avoided.

In short, President Trump and his administration should account for the reaction of the co-equal branches of government and "we the people" when making policy. And listening to his lawyers might actually help build consensus and avoid public backlash.

Tobias T. Gibson is an associate professor of political science at Westminster College in Missouri.


The views of contributors are their own and not the views of The Hill.