Donald Trump has caused a stir by issuing a flurry of executive orders in his first week in office. They have been used by every chief executive since the days of George Washington. Find out more in t
Donald Trump has caused a political flutter in his busy first week as US president.
He has issued a number of what are known as “executive orders”.
But are they a key tool for a new president keen to stamp his authority on government legislation?
Or are they, as some say, the hallmark of a leader who is prepared to sidestep the democratic process to achieve his aims?
Find out more in this Euronews Fact Check.
What are executive orders?
They are legally-binding orders given by the President, acting as head of the Executive Branch, to Federal Administrative Agencies.
The aim is to implement or execute the laws of the land.
Why are they used?
Essentially, to direct federal agencies and officials in their execution of congressionally-established laws and policies.
However, in many cases, they have been used to guide agencies in directions that are contrary to what Congress wants.
So they don’t need to be approved by Congress, then?
However, they have the same legal weight as laws passed by Congress.
What gives the US president the power to do this?
Article II, Section 1 of the US Constitution grants the “executive power”.
Article II, Section 3 directs the president to “take care that the laws be faithfully executed.”
A brief history and examples
Executive orders have been used by every chief executive since the days of George Washington.
Most were unpublished and only seen by the agencies involved.
Many significant policy changes have been brought about through their use. For example:
- Harry Truman integrated the US armed forces
- Eisenhower desegregated schools
- Kennedy and Johnson used them to bar racial discrimination in federal housing, hiring and contracting
- Reagan barred the use of federal funds to advocate abortion (reversed by Clinton)
Why are they controversial?
Because they allow the president to make major decisions, even laws, without the consent of Congress.
This runs against the logic of the Constitution – no one should have the power to act unilaterally.
The problem is, sometimes Congress cannot agree on how to implement a law or programme.
This leaves the decision with the federal agencies involved and the president who stands at their head.
When Congress fails to specify the details of how a law should be executed, it leaves the door open for the president to provide those details himself in an executive order.
The ultimate criticism of executive orders is that their unfettered use could result in a president becoming a virtual dictator, making major policy decisions without any input from Congress or the judiciary.
What if Congress objects?
It has two main options for challenging an executive order:
Option One: rewrite or amend a previous law
The legislation can also be spelled out in greater detail.
The president has the right to veto the bill if he disagrees with it. In practice, a two-thirds majority is often needed to overide an executive order.
Option Two: challenge it in court
This would be on the grounds that the EO deviates from “congressional intent” or exceeds the president’s constitutional powers.
Truman was famously rebuked by the Supreme Court for overstepping the bounds of presidential authority.
After the Second World War, he seized control of US steel mills in a bid to settle a series of strikes.
Congress challenged his action and the Supreme Court ruled it was unconstitutional as the president did not have the power
to seize private businesses to settle labour disputes.
However, the Supreme Court is mainly tolerant towards executive actions.
Are some more likely to be challenged than others?
Congress is less likely to challenge EOs relating to foreign policy, national defence or international treaties.
This is because these are powers granted to the president by the Constitution.
National security concerns mean some defence or security-related EOs are never even made public.
Executive orders by president
Can executive orders only be issued by the president?
They are also used by most state governors. They are considered the “chief executives” of their states.