The Legality of Trump’s Executive Orders

Adam Joseph.

Many people have expressed their anger about President Trump’s wave of executive orders that came through our feed. The common question hasn’t been about the ethicality of these orders, but instead “Can he actually do that?”. To understand these executive orders, their legality, how likely certain ones are to stick, and where this is coming from, it is important to start from the beginning.

Starting from the constitutional basis of this issue, the short answer is yes, he can actually do that. Executive orders are ways for the sitting president to “fill in the gaps”. These orders cannot directly go against the written law from the constitution or Congress. But in terms of these gray areas of federal law, the incumbent president can sign any executive order the current law permits, and rescind those of a previous president.

But can these orders get overturned? And if they can, how is it possible? Overturning an executive order can come about through the checks and balances in place between the three branches of government in place. Both the legislative and judicial branches can strike down these orders if they overreach. As said before, executive orders are only possible in a gray area, where law does not specify anything. So if the judicial branch finds anything about the executive order unconstitutional, they can strike it down. And if the executive orders get in the way of Congress, they can pass a new law that invalidates it.

Knowing all the history behind the executive order now, let’s take a look at the big ones and how likely they are to stick – or if they haven’t, why they failed.

MIGRANT DETENTION CENTER IN GUANTANAMO BAY – This executive order instantly caused outrage, as it furthered President Trump’s purge against immigrants. This detention center can possibly hold up to 30,000 deported immigrants, making it the size of a mid-sized town. This executive order finds itself in the gray area, not overstepping anything from the Constitution, making it hard for the judicial branch to find a basis to strike this down. And at the same time, the overwhelming Republican majority likely will make it hard for there to be anything done to prevent it.

ENDING BIRTHRIGHT CITIZENSHIP – This one’s complicated. The executive order in question attempts to redefine who is allowed to become a citizen, as now this would prevent people born in the country from undocumented parents' citizenship. Already, a federal judge has put a temporary block on this order, and it shouldn’t surprise anyone if we see this order get overturned. The fourteenth amendment states that: All persons born or naturalized in the United States…are citizens of the United States and of the State wherein they reside. This executive order strays into an area that there is already constitutional law around, so it would likely be very easy for this order to get struck down by the justice department. 

FREEZE FEDERAL SPENDING – This executive order called for the pausing of federal spending indefinitely. Similar to the previous executive order on birthright citizenship, this was a big shake up, leading to another federal judge temporarily blocking it. Except this time, the order actually ended up getting struck down. But it didn’t come from any branch of government. It came from the people. The public outcry was so loud that the Trump administration had to repeal the order. This serves as a good reminder that the people determine how they are governed.

With plenty of executive orders issued and plenty more to come, it is unclear what the federal government will look like by the end of the term. With looming orders such as the destruction of The Department of Education and banning transgender people from competing in women’s sports, it is clear that this new administration is going to change the presidential norm. There seems to be a whole world of change coming our way.