Every President issues executive orders and with each there are those who decry the use as criminal, illegal. Keeping to his campaign promises, President Donald J. Trump has been firing off executive orders like a 30s gangster with a Tommy Gun.
President Trumps most recent E.O., calling for a ban of immigrants from certain Muslim countries for 120 days, is causing a new wave of protests in America and outcries from our Allies. So, the question of legality and Executive Orders deserves an answer.
Are Executive Orders Constitutional?
The United States Constitution is silent on the matter of Executive Orders. The office of the Presidency is to be one of an Administrator, but also an executioner of law. All lawmaking is left to Congress while interpretation and disputes over law are handled by the Supreme Court.
To illustrate, consider the example of a major corporation. A corporation has a CEO, a Board of Directors, and Shareholders. The Shareholders are the owners of the business. The Board makes the rules for the running of the business and the CEO executes those rules. In this example, the citizens of the United States are the shareholders. Congress is the Board, and Trump is the CEO. Can the CEO order others in the company?
Of course, but only within the realm of the rules already established. He cannot create new rules.
Thus, it makes sense that although the Constitution is silent respecting Executive Orders, they ARE necessary for the execution of the Executive’s position in the governing of the nation.
Can Executive Orders be Illegal or Criminal?
Executive orders can be illegal. President Abe Lincoln passed many Executive Orders, one of which suspended the Writ of Habeas Corpus. Congress later ruled that his order was illegal and they overturned the order. But Lincoln also issued the Emancipation Proclamation, which too was an Executive Order. Some at the time took exception to that order and considered it criminal, but it stood and ultimately led to the 14th Amendment.
Because Executive Orders make sense, Congress and the People have largely overlooked their specific mention in the Constitution.
Even the first President George Washington, who was so scrupulous regarding propriety that he refused to let anyone refer to him as “King,” used Executive Orders. His first EO took place while Congress was out of session.
Congress had already approved the building of the District of Columbia and the White House. So that construction could begin before winter set in, Washington ordered the draining of a swamp upon which construction was to occur. Although not directly authorized to order this, doing so was in the best interest of the new nation and government. So it was proper.
Executive Orders and Presidents Past
As President Elect, Mr. Trump vowed to undo every Executive Order by President Obama. This is not likely to happen because some of his orders, such as suspending trade with North Korea until they suspend nuclear development, make sense. Still, President Trump has been going at the Executive Order’s pretty fast. At his current pace, he will certainly outdo modern Presidents and could even give FDR a run.
To put this in perspective, with just one week in office, Mr. Trump has already signed four Executive Orders. Multiply that by 52 weeks and he will pass 208 in his first year. By way of comparison, Barak Obama signed 276 his entire term…eight years!
BUT…in his first week in office, President Obama signed five E.O.s. See? Perspective.
FDR signed more than any other President, with a whopping 3,522 Executive Orders signed. Even Reagan only signed 381 in eight years, Bill Clinton 308, and George W. Bush only 291.
IS the Immigration Executive Order Legal?
Now that is the $64,000 question. It is a question that is likely to be tested in the courts. Mr. Trump believes it is. If not, we should hope that the courts will overturn it. However, because the ban order is for a few weeks only, by the time a court hears the case the order will have expired.
What of the other Executive Orders issued by President Trump?
As stated already, there are four others, though some online news organizations are reporting as many as 17. The reason for this discrepancy likely lay in the fact that Executive Orders today are an official type of order while there are other commands issued to heads of bureaucracies known as Presidential Memoranda. These can be likened to a CEO issuing a memo to all VPs and Office Managers. There is a difference.
Like the Executive Order restarting work on the Keystone Dakota oil pipeline. We expected this of course because Mr. Trump reportedly owns a share in that project…but that raises an entirely different legal issue.