How US presidents wield power with executive orders

WASHINGTON – Upon taking his second oath of office as US president, Donald Trump is expected to make swift and extensive use of the unilateral powers he will wield.

Trump is planning to sign a series of executive actions

in his first days in office that would, among other things, set up the mechanics to carry out mass deportations, put a hiring freeze on the federal workforce, and authorise new drilling on federal lands, according to people familiar with the efforts. Many of his anticipated executive actions would overturn actions by his predecessor, Mr Joe Biden. 

Executive actions can instantly change the course of American governance without any involvement from lawmakers in Congress. Some critics worry they can be overused, even abused, by the inhabitants of the White House.

What is an executive action?

It is a signed directive from the US president. The most formal and best known are executive orders, which are legally binding mandates to executive branch agencies that instruct them in how to implement existing federal law. Orders are numbered sequentially and printed in the Federal Register. 

US presidents can also issue memoranda, which are similar to orders but do not need to be submitted to the Federal Register, and proclamations, which typically address ceremonial matters like federal observances, and, unlike orders and memoranda, do not typically carry the force of law. 

While the US Constitution does not explicitly mention executive orders and other actions, legal consensus holds that US presidents are vested with the power to issue orders in policy areas they hold authority over, such as the day-to-day administration of the government. An executive order cannot be used to give the presidency new power. 

Can the other branches of government limit executive actions?

Yes. While Congress cannot overrule executive actions properly rooted in the US president’s constitutional authority, it can undermine them by passing legislation that makes carrying out the order impossible, such as denying funding to a programme or office the US president creates. For example, when then US president Barack Obama issued an executive order to close the American military detention facility at Cuba’s Guantanamo Bay, Congress voted to block funding for the transfer of detainees to the US, effectively scuttling the plan.

Additionally, an executive order can be declared illegal by the courts if a party affected by the order challenges it and the court rules in the complainant’s favor. 

What are the criticisms of governing via executive action?

Executive orders are meant to be administrative instructions to the executive branch agencies, not legislation-by-other-means when resistance in Congress is too great to pass a Bill. But critics argue that US presidents often use them to create sweeping policy without Congress’ involvement. For example, Trump used executive authority to issue a ban on entry to the US for citizens of several Muslim-majority countries in 2017, and Mr Biden used it to protect access to reproductive health services in 2022 after the Supreme Court overturned Roe v Wade, eliminating the constitutional right to abortion.

Executive orders are often criticised, too, for being easily revoked. Days into Mr Biden’s term, The New York Times editorial board urged him to slow down on executive actions and instead work with Congress. “Executive actions are far more ephemeral and easily discarded than legislation, which can set up a whipsaw effect, as each president scrambles to undo the work of his predecessor,” it wrote. 

The so-called Mexico City Policy, which forbids international non-profit organisations that receive federal money from providing abortion services, is perhaps the clearest example of a US policy that flip-flops depending on who occupies the White House. Enacted in 1984 by then US Republican president Ronald Reagan, the policy was rescinded by Democrat Bill Clinton when he took office in 1993, reinstated by Republican George W. Bush in 2001, rescinded by Mr Obama in 2009, reinstated – and expanded – by Trump in his first days as president in 2017, and rescinded again by Mr Biden.

Did Trump, in his first term, use executive actions more or less than other US presidents have?

According to the American Presidency Project at the University of California-Santa Barbara, during his first term, Trump issued a total of 220 executive orders – not including memoranda or proclamations – or an average of 55 a year. 

By comparison, Mr Biden has issued 159 in office, or 38 per year, and Mr Obama, Mr Bush, and Mr Clinton averaged 35, 36, and 46 per year respectively. In fact, Trump’s per year average was the highest since Mr Jimmy Carter, though far from the highest in history: The champion of executive action was Mr Franklin D. Roosevelt, who issued 3,721, or an average of 307 per year. BLOOMBERG