Courts and Law Brooklyn Heights

So what is an executive order, anyway?

February 16, 2017 By William Araiza, vice dean at Brooklyn Law School Brooklyn Daily Eagle
William Araiza. Eagle photo by Rob Abruzzese
William Araiza. Eagle photo by Rob Abruzzese
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“Today, President Trump issued an executive order ….”

Since taking office last month, President Donald Trump has made a good amount of news by issuing executive orders.  His Muslim travel ban order has, of course, generated enormous national attention.  He has also issued an important executive order regarding the work done by federal regulatory agencies, such as the Environmental Protection Agency and the Securities and Exchange Commission.  Given the president’s penchant for solo action, we can expect to see his administration largely defined by such orders.  If the last month is any guide, many of them will likely be controversial.  Thus, a little investigation of their foundation and effect is in order.

First, terminology. There’s nothing special about the term “executive order.”  The Constitution doesn’t mention it; instead, the first recorded use of the term dates from the Lincoln administration.  Indeed, the Constitution makes no explicit provision at all for edicts or directives or orders emanating from the office of the president.  But it’s common sense that the president would in fact issue such edicts: after all, as an executive (the chief executive), one would expect him to exert his will through an instrument like an order. Over the course of American history, presidents have given various labels to such edicts, including “proclamations,” “homeland security presidential directives” and “presidential announcements.”  While presidents still use many of these other labels, “executive order” has become the favored vehicle for many important presidential edicts.

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The interesting issue is the effect executive orders have.  Here, the analysis gets a little muddy.  We all know from high school civics that Congress is the federal branch that is authorized to legislate — that is, to make binding law.  This might suggest that an edict emanating from the president — such as an executive order — necessarily lacks binding legal effect.  But of course that’s not the case: As we’ve seen with the Muslim travel ban order, executive orders can at least purport to have such binding effect — for example, in the case of the travel ban, to prevent certain groups of aliens from having the legal right to enter the U.S.

How can that be?  How can an executive order have such binding effect if in our system only Congress has the power to make federal law?  The answer is delegation.  Both “we the people” and Congress have delegated power to the president, and that power includes the authority to make binding law in some circumstances.

Let’s start with us: “We the people.”  Those are the first three words of the Constitution.  They reflect an intention on the part of the American people, expressed through the Constitution’s drafters, to “ordain and establish” a Constitution and the government that Constitution creates.  (To be sure, “the people” that had a role in that decision were a small subset of the American people who were alive in 1787, with women, slaves, Native Americans and non-property owners largely or entirely excluded from the process.  Article II of the Constitution delegated — that is, distributed — “the executive power” of the federal government to the president.  Article II also delegated to the president more precisely identified powers: among others, to be commander in chief, appoint officers of the U.S. and, most significantly, “take care that the laws are faithfully executed.”  

To the extent an executive order is appropriately grounded on any of those Article II powers, it is binding law.  For example, President Harry Truman used an executive order to seize the nation’s steel mills in 1952 in order to prevent a strike that would have crippled industrial production during the Korean War.  President Truman argued that that order, which clearly would have had binding legal effect on the mill owners, was authorized by his Article II commander in chief and “take care” powers.  The Supreme Court rejected his argument, but had it found the order validly authorized by those powers, it would have been a valid, legally binding rule.

The second type of delegation is statutory.  When Congress enacts a complex regulatory law (for example The Clean Air Act) it almost necessarily has to delegate substantial power to an administrative agency (in this case, the EPA) to implement that law. When the agency acts pursuant to that delegation — for example, by enacting a regulation — that regulation has the force of law.  But Congress doesn’t have to delegate authority to an agency; instead, it can delegate authority to the president himself.  Indeed, that’s what Congress did when it enacted the Immigration and Nationality Act (INA), the law that President Trump argues gave him the legal authority to issue the executive order enacting the Muslim travel ban.  As with the constitutional authority President Truman relied on when he promulgated the executive order seizing the steel mills, a court might reject President Trump’s claim of statutory authority for the travel ban order.  Or it might find that he had such authority, but it was trumped by other constitutional provisions — for example, the First Amendment’s religious freedom clauses.  But if the travel ban is found to be authorized by statute and not otherwise unconstitutional, then it will be legally binding, just as President Truman’s steel seizure order would have been had the Court agreed that Article II granted him the authority to seize the mills.

In short, then, executive orders are simply a vessel for the president to exert whatever powers he may have, whether as a matter of constitutional authority or congressional grant.  When we think about such orders, we should think about that underlying question, as well as their policy soundness.  (After all, the fact that a president has the legal authority to act doesn’t mean that that action is a good idea.  Recall that Congress gave President Johnson the power to intervene in Vietnam.)  So let’s talk about the constitutionality and wisdom of President Trump’s orders.  But let’s not get hung up on the nomenclature of the order the president uses in order to exert the powers he claims.

William D. Araiza is vice dean and professor of law at Brooklyn Law School.  Before becoming a professor, he clerked for Judge William Norris of the U.S. Court of Appeals for the Ninth Circuit and Justice David Souter of the U.S. Supreme Court.

 


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