Executive Orders and Judicial Challenges

Dina Rosin (CMC ’20)

With the recent shift in leadership from Barack Obama to Donald Trump, many observers have expressed concern about President Trump’s issuance of a number of executive orders.  However, neither the existence nor the proliferation of Trump’s executive orders are out of the ordinary among past presidents. While the notion of executive orders conjures a vision of government by executive fiat, the long established tradition is based on precedent as old as the presidency itself.  Article II of the Constitution states that “the executive Power shall be vested in a President of the United States of America,” allowing enormous leeway in his role as commander-in-chief and chief legislator. It is the judicial branch’s responsibility to check this executive power, and this mechanism has already been utilized in the first weeks of the Trump presidency.

Executive orders have been practiced by every president since George Washington. While many executive orders are uncontroversial, others have larger implications. For example, the Emancipation Proclamation was an executive order by Lincoln. FDR’s internment of American citizens of Japanese heritage and Carter’s amnesty for Vietnam War ‘Draft Dodgers’ were both executive orders. Presidents often use executive orders to bypass the political roadblocks in Washington D.C.

On occasion, presidents have written executive orders that were overturned by the courts.  In 1952, Harry Truman attempted to nationalize steel mills after workers went on strike, arguing that the steel was needed to support the Korean War.  The steel companies sued the Secretary of Commerce and the Supreme Court ruled that the president did not have the power to seize private businesses.  President Clinton created an order to prevent the federal government from contracting with organizations that had strikebreakers on their payroll. In this case, the court of appeals struck down Clinton’s executive order, ruling that it had violated the National Labor Relations Act.  President Obama attempted to expand his Deferred Action for Childhood Arrivals (DACA) program by executive order in 2014, only to have this expansion blocked by the Supreme Court. DACA was seen as an example of Obama overstepping his executive power and ignoring federal procedure. These cases show the court’s broad ability to defend rights, especially when these rights are threatened by an executive order.

Donald Trump has quickly issued many executive orders in his short time in office. While some of President Trump’s orders are symbolic in nature, his Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States has caused major controversy since enacted on January 27th.  It was quickly dubbed the “Muslim Ban” by the media, and while technically not a ban on followers of Islam, it disproportionately affects countries with a majority Muslim population.  The Ninth Circuit Court in Seattle quickly issued a restraining order, effectively stopping implementation of the ban. The court argued that this executive order contradicted the 1965 Immigration and Nationality Act, which disallowed blocking immigration based on the home country of foreign nationals. Less than a week later, an appeals court in San Francisco upheld the restraining order, leaving the Supreme Court as the last avenue for appeal.

To date, the Trump administration has not appealed the legality of this Executive Order to the Supreme Court, nor has it attempted to enforce the order in defiance of the courts. Instead, the administration has signaled that its will attempt to write a new Executive Order to accomplish its goals in a fashion that does not contravene existing law. The timely response of the federal courts to this executive order has been a source of comfort for many who agreed with the ruling of the courts. To others, this signals a new era of judicial legislation. Ultimately, the ability of the judicial system to intervene when executive orders overstretch their reach is a fundamental tenet of America’s democracy. Executive orders, despite having the power to bypass the legislature, still must face the check of the judiciary.


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