By Brendan Pierson
(Reuters) – Republican President-elect Donald Trump has pledged to reshape U.S. policy with a blizzard of executive orders within hours of taking office next week.
Here is a look at what the president can and cannot do by executive order.
WHAT IS AN EXECUTIVE ORDER?
An executive order is an order issued unilaterally by the president that has the force of law.
Notable executive orders issued by Trump in his first term include a ban on travel from some Muslim-majority countries and an order expanding the leasing of offshore waters for oil exploration. Trump issued 220 executive orders in his first term, more than any other president in a single four-year term since Jimmy Carter. President Joe Biden issued 155 executive orders as of Monday.
HOW FAST CAN AN EXECUTIVE ORDER TAKE EFFECT?
Once a president signs an executive order, it can take effect immediately or not for months, depending on whether it requires formal action from a federal agency.
For example, Trump’s Muslim ban took effect immediately, because it invoked a 1952 federal law that explicitly gave the president the authority to bar “any class of aliens” from the country if he deemed them detrimental.
Other executive orders instruct federal agencies to take action. For example, Democrat Biden ordered health agencies to take action to safeguard access to abortion after the U.S. Supreme Court allowed states to ban it. This had no immediate effect, but agencies in the following months passed new rules through the usual rulemaking process, such as a regulation meant to safeguard the privacy of people who obtain abortions.
WHERE DOES THE POWER TO ISSUE EXECUTIVE ORDERS COME FROM?
While the extent of the president’s executive order power has been disputed, legal experts agree that it comes either from Article II of the U.S. Constitution, which makes the president the commander in chief of the military and the head of the executive branch of government, or from powers explicitly given to the president by Congress.
Laws passed by Congress typically delegate rulemaking authority to federal agencies, which ultimately report to the president. Many executive orders instruct the agencies to take actions or make rules in order to fulfill certain goals, effectively functioning as an announcement of the president’s policies.
WHAT CAN’T THE PRESIDENT DO THROUGH EXECUTIVE ORDERS?
The president cannot make new law beyond the powers specifically given to him by the Constitution or Congress simply by issuing an executive order.
If an executive order instructs agencies to take action, any resulting agency rulemaking is subject to the federal Administrative Procedure Act, which requires agencies to allow public comment on any rules and forbids rules that are “arbitrary and capricious.”
Agency rules also cannot violate basic constitutional rights, such as due process and equal protection under the law, or laws that have been passed by Congress.
CAN EXECUTIVE ORDERS BE BLOCKED BY COURTS?
Yes. Executive orders can be challenged in court and have been blocked for exceeding the president’s authority.
A judge in 2017 blocked Trump’s order meant to withhold federal funding from so-called sanctuary cities that did not cooperate with his immigration policies, finding that the president could not impose new conditions on federal spending that had been approved by Congress.
A federal appeals court in 2023 blocked Biden’s executive order requiring federal workers to be vaccinated against COVID-19, finding that it overstepped his authority by interfering with personal medical decisions.
On the other hand, courts have often backed the president’s executive order powers, as when the Supreme Court in 2018 upheld the Muslim travel ban.
(Reporting by Brendan Pierson in New York, Editing by Alexia Garamfalvi and Matthew Lewis)
