The Republican President-elect Donald Trump has vowed to redefine US policy with a flurry of executive orders soon after he assumes office next week.
Here’s a breakdown of what the president can and cannot accomplish through executive orders.
What is an executive order?
An executive order is a directive issued unilaterally by the president that carries the weight of law.
During his first term, he signed 220 executive orders, more than any other president in a single four-year term since Jimmy Carter. As of Monday, President Joe Biden had issued 155 executive orders.
How quickly can an executive order take effect?
Once signed by the president, an executive order may take effect immediately or after several months, contingent on whether it necessitates formal action from a federal agency.
For instance, Trump’s travel ban on Muslims was implemented instantly because it leveraged a 1952 federal law that explicitly authorized the president to exclude “any class of aliens” from the country if he considered them a threat.
One of Donald Trump’s most prominent executive orders was a travel ban affecting certain Muslim-majority countries.
Other executive orders often direct federal agencies to take specific actions. For example, Democrat Joe Biden mandated health agencies to act in order to protect access to abortion after the US Supreme Court permitted states to impose bans.
This did not yield immediate results, but in the subsequent months, agencies established new rules via the traditional rulemaking process, including regulations aimed at securing the privacy of individuals seeking abortions.
From where does the power to issue executive orders originate?
While the scope of the president’s executive order authority has been a subject of debate, legal experts generally agree it derives from Article II of the US Constitution, which designates the president as the commander in chief of the military and the leader of the executive branch, or from powers explicitly granted to the president by Congress.
Laws enacted by Congress commonly delegate rulemaking authority to federal agencies, which ultimately answer to the president.
Many executive orders guide the agencies to undertake actions or formulate rules in line with specific objectives, effectively serving as a declaration of the president’s policies.
What actions are beyond the president’s reach via executive orders?
The president cannot create new laws outside the powers expressly granted to him by the Constitution or Congress solely by issuing an executive order.
If an executive order mandates agency actions, the ensuing agency rulemaking must comply with the federal Administrative Procedure Act, which requires agencies to solicit public feedback on any rules and prohibits “arbitrary and capricious” rules.
Agency regulations must also uphold fundamental constitutional rights, such as due process and equal protection under the law, in addition to complying with statutes enacted by Congress.
Can executive orders be challenged in court?
Yes. Executive orders can be contested in court and have been overturned for exceeding the president’s jurisdiction.
A judge in 2017 halted Mr. Trump’s order aimed at withholding federal funding from so-called sanctuary cities that did not comply with his immigration policies, ruling that the president could not impose new conditions on federally approved funding.
Donald Trump has seen some executive orders blocked by the courts in the past.
A federal appeals court in 2023 invalidated Mr. Biden’s executive order mandating vaccination for federal employees against Covid-19, concluding it overstepped his authority by encroaching on personal medical choices.
Conversely, courts have frequently upheld the president’s executive order powers, as evidenced by the Supreme Court’s 2018 endorsement of the Muslim travel ban.
