In his first week in office, Donald Trump showed the American public just how often he was willing to flex his executive powers. He signed orders on policies affecting everything from healthcare to immigration, the environment, trade, and women’s health abroad. Presidents have always used executive orders—Obama issued 277 of them, 16 after his first month—it’s well within their rights. His first orders addressed presidential records and the closing of Guantanamo Bay prison. But Trump’s actions in his first days could potentially affect millions of people in very acute ways.
If you’re anything like me, you might have Googled “executive order” hoping for clear answers on the likelihood of Trump’s various orders. And when you weren’t satisfied with what you found there, it’s possible you might have Googled “How come Donald Trump doesn’t have to get Congress’ approval to build a wall at the border between the United States and Mexico?” Another question that you may have typed into Google, or asked a lawyer friend: “How is it constitutionally possible for Donald Trump to indefinitely stop Syrian refugees from entering the country? How can he alone decide to enact a 30-day ban on immigration from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen?”
Since Google didn’t yield sufficient results, I began calling around to constitutional law experts about these very questions. It turns out the definition of an executive order isn’t so clear-cut. Most experts wouldn’t go on the record with me, because, well, my questions were their questions too—as in, they’re arguing among themselves about the definition and scope of a president’s executive order.
But Stephen Vladeck, a law professor at the University of Texas, deigned to explain, in layman's terms, what an executive order does and why we all have good reason to feel confused about how far-reaching they can be.
This interview has been edited and condensed.
Collier Meyerson: What is an executive order?
Steve Vladeck: An executive order is just a formalized version of a policy declaration by the president. So it’s the president formalizing directives that he is issuing to the executive branch.
CM: So does that mean that when Trump says, “We’re going to enact a four-month ban on [immigration]” that it’s actually going to happen?
SV: The short version is: It’s an instruction [for] the people in the executive branch on how to enforce particular laws. In that regard, yes, if the president says, “Dear immigration authorities, stop doing this,” they’re bound to listen to him. [The question] is not whether those kinds of directives [are] binding on the executive branch—they are. There’s no question that they are. The question is, if they then lead to the executive branch taking actions against private people, can they be challenged in court?
So imagine an executive order that says, “Dear Secretary of Health and Human Services, every two months you have to send me a report.” That’s fine. We’re not going to care about it that much. Versus “Dear Secretary of Health and Human Services, stop funding Medicare.” That’s going to have consequences that affect real non-government people and those consequence are almost certainly going to provoke litigation.
And then the question becomes, “Did the President have the authority to issue these directives? Is he within his enforcement discretion in directing which laws to apply and how? And even if he is, is the application he’s directing itself illegal, maybe because it’s unconstitutionally discriminatory?”
CM: How is it possible for Trump to order the construction of a wall between the United States and Mexico? How is that constitutional?
SV: The short version is that the border itself is already controlled by the executive branch through the auspices of the Department of Homeland Security. So we already have on a daily basis the DHS literally and figuratively manning the border.
But the real question is not whether you can build a wall. The real question is where does the money come from? Now Congress, of course, appropriates a whole lot of money to the Department of Homeland Security for the purposes of immigration enforcement. And so the question would be whether the construction of a wall falls within the interpretation…[and] scope of what Congress has appropriated money to DHS for.
But that’s a pretty common question, wholly apart from the very big visual optics of what Trump is doing. Whether the executive branch is acting consistently with or in excess of a delegation of power by Congress is stuff we deal with every day.
CM: A president can overturn the orders and actions of a previous president, right? For example, President Obama signed an executive order called Deferred Action for Childhood Arrivals (DACA), which basically made it so that some undocumented immigrants, who came to the U.S. at an early age, could stay here by renewing their status every two years. Obama did that because he didn’t have congressional support. In his first major interview Wednesday night, Trump was asked about whether he would overturn DACA. He didn’t really answer the question, but lots of people believe he’s going to do just that. He does have both houses of Congress. If he really wanted to make sure that young undocumented immigrants wouldn’t get a chance to stay here, wouldn’t he take the issue to Congress so that it was a law instead of an executive order that could potentially be overturned by the next president?
SV: The short version is, yes: Presidential orders only bind future presidents until the future presidents rescind them.
If this were any other president the answer would be: He’s probably a bit skeptical that Congress will just unreservedly and wholeheartedly endorse his agenda. He certainly does not speak for all Republicans in the Senate. So if he were any other president, the hiccup is just not wanting to get policy initiatives bogged down in potential opposition within your own party. In this case, we have to add that his ego appears to be such that he would much rather be able to say that he did it alone. A lot of this is optical and symbolic. I think he probably is wary of the more moderate Republicans in the Senate, but he also may want to say: “I didn’t need Congress. All these weak presidents who came before me always went to congress, I’m strong.”
CM: Is it possible to obstruct or challenge an executive order? I read that it might be possible to challenge Trump’s executive order against Syrian refugees and other potential immigrants from Muslim countries on the basis of religious discrimination. Who is the challenger in this scenario and is it even possible?
SV: In theory, someone who otherwise would have been eligible for a visa who now isn’t could try to bring a lawsuit, not claiming that they should receive a visa but that they’re at least eligible.
CM: After spending the last day talking to a few different experts, I’ve come to find out that this is a really hotly contested issue, the whole idea of how far-reaching an executive order is and what the scope is. What are you guys all fighting about?
VS: Congress delegates a ton of power to the executive branch. Congress is both for good and bad reasons often very vague about the scope of powers its delegating. And so, the executive branch, especially the modern executive, tends to take vagueness and ambiguity in those delegations and exploit them for policy goals. So, for example, the whole Obama immigration fight was whether he could do what he did with the DACA memo without Congress, which was a fight over whether the executive branch was over-interpreting the existing immigration laws. Executive orders are a manifestation of the battle that has been raging for 80 years over just how much latitude the executive branch should be allowed in implementing statutory authorities.
Collier Meyerson is a reporter at Fusion with a focus on race and politics. She lives in Brooklyn.