What is the scope of a president’s executive orders?


In just his first week as America’s 45th president, Mr Trump signed executive orders and memoranda freezing federal hiring, backing out of the Trans-Pacific Partnership, defunding “sanctuary cities” that protect unauthorised immigrants, undermining Obamacare, restoring the “global gag rule” on abortion counselling, restarting the construction of two controversial oil pipelines through Native American lands, building a wall on the nation’s southern border, blocking Syrian refugees and residents of several majority-Muslim countries from immigrating to the United States and slashing regulations on businesses. These moves have provoked fierce criticism from Democrats and studied silence from most Republicans. What are executive orders, and what limits a president’s authority to issue them?

Only Congress can make laws; it is the executive branch’s duty to enforce them. Article II of the constitution specifies that presidents “shall take care that the laws be faithfully executed”, and they take an oath to do just that on inauguration day. But as John Locke pointed out in his “Second Treatise of Government,” gaps and ambiguities are hallmarks of written law. “[A] latitude”, Locke wrote, must be “left to the executive power, to do many things of choice which the laws do not prescribe”. When on January 25th he ordered the erection of a wall on the Mexican border, for example, Mr Trump claimed to be acting under the Immigration and Nationality Act and two other statutes. This move, he wrote, was designed to protect America’s “safety and territorial integrity” and to “ensure that the nation’s immigration laws are faithfully executed”.

Few presidents hesitate to put their executive power to quick use. Mr Obama issued fewer orders than most, averaging 35 a year (compared to Franklin Delano Roosevelt’s 307, the peak, and 36 and 46 for George W. Bush and Bill Clinton, respectively). But Mr Obama came out swinging, too, putting his name to 17 orders during the first month of his presidency. Not every signature bears fruit: Barack Obama ordered the closure of the Guantanamo Bay detention centre on January 22nd, 2009, a facility that still housed 41 inmates when he left office. The boldness of Mr Trump’s volley of orders in the opening days of his presidency may be similarly tempered, and the entry ban has already met with judicial resistance. Further court challenges are likely: threatening sanctuary cities with a loss of federal funding may violate the Tenth Amendment and the abortion gag rule runs up against the First.

Read the complete article on The Economist web site here.