Executive orders and judicial injunctions

MARY REICHARD, HOST: Coming up next on The World and Everything in It: executive orders.

You’ve just heard of the legal skirmishes around President Trump’s executive order affecting refugee resettlement.

Every president from George Washington on has issued executive orders… the one exception being the 9th president, William Henry Harrison who died right after taking office.

LINDSAY MAST, HOST: Abraham Lincoln issued perhaps the most famous executive order: the Emancipation Proclamation in 1863. That changed the legal status of 3 ½ million enslaved African Americans.

Joe Biden issued a total of 160 during his single term. President Trump’s count so far this year is nearly 80. The latest from this past Saturday, making English the official language of the US.

Joining us to talk about executive orders is Karen Holt, professor of political science at Virginia Tech.

REICHARD: Karen, my understanding of what an executive order is…is pretty straightforward: a written directive signed by the president that orders the government to take specific actions to ensure the laws are faithfully executed. Is that accurate?

KAREN HOLT: Well, that sounds like a basic question, but in many ways it's not. Sometimes it gets used to refer to anything that a U.S. president does. That is in terms of trying to make policy decisions or issue policy assertions or ideas or initiatives. And that's too broad of a sense…but it's become a more clear and explicit legal instrument really going back to the Franklin Roosevelt administration. And that's when they started being numbered and started being collected by the federal register. But it's important to be clear that executive orders are themselves a specific kind of presidential action. And other things that are called executive orders may also be things like presidential directives or presidential proclamations or a whole range of other kinds of activities.

REICHARD: What’s the source of presidential power to issue executive orders?

HOLT : Executive orders have been seen, going back to George Washington, as seen as being a way for a president to exercise their Article II of the Constitution's powers in terms of saying, my responsibility is to make sure that the laws are faithfully executed. Those laws, of course, are made by Congress, but they have to be consistent with the U.S. Constitution. And so an argument would be made that a president's authority to issue these executive orders comes from at least two different places, one from the Constitution itself, but secondly from Congress and the statutes that Congress passes.

REICHARD: Alright. I think most people understand executive orders as the president telling the executive branch agencies to accomplish his priorities. Easy to issue but not so easy to implement, correct?

HOLT: That's fair. However, many executive orders actually have started on the agency side. And under those circumstances, some agencies may be appealing to the White House and saying, Mr. President, it would be helpful to get your specific guidance in writing. Other times, it's used as almost a negotiation process within the executive branch. And so it's important to keep that broader landscape in mind although clearly it's changed over time. Certainly talking about incoming presidents what we've seen over the last several administrations is that there's a flurry on January 20th. Presidents are issuing executive orders for a variety of reasons, in some cases overturning the executive orders that their predecessors put in place, and so making it clear to all there's been a change in leadership and we've got new priorities and new goals. The other thing that new presidents often do is issue executive orders that are more hortatory, that are more focused on the general public and their political audiences outside the executive branch, simply saying, I won the election and these are what my plans are going to be going forward for the executive branch agencies. That then can lead to some of the implementation concerns that get raised from the executive branch agency side. Well, what does that mean specifically that we need to do?

REICHARD: To be clear, the president cannot write a new statute because that’s the job of Congress. But an order can tell federal agencies how to implement a statute, right?

HOLT: Precisely, precisely, how to implement a statute, and in some cases, how to prioritize that implementation. And so we've had some presidents that have said, don't pay as much attention to this part of the statute. Executive orders can also give agencies guidance that way as well.

REICHARD: Okay, let's talk about how executive orders can be stopped. And we're seeing this playing out right now with some of the executive orders President Trump issued. Checks and balances.

HOLT: One of the clear checks and balances is that many of the initial executive orders that come out of new administrations, not so much this one in this time around, but in the first term, many times the Trump administration was issuing executive orders without an indication of what their statutory authority was or what their constitutional authority was. So one way then that parties can bring claims into the federal court system is to say, you know, the president doesn't have the statutory authority or the constitutional authority to do these kinds of things. So that's one claim. Other times, parties from the outside can say, Congress may have said this, but this is not the precedent as in court decisions, that is not the common interpretation of that part of the statute. Or what the president is proposing is a different interpretation of the law. So that could be another line of argument as well.

REICHARD: How have executive orders evolved over time? What factors influence those changes?

HOLT: Well, whole range of things. But among those factors …we saw a real increase of executive orders really going back to the late 19th and the early 20th century as government began to expand over time. So then we start thinking about when was the federal government taking on new responsibilities and coping with new tasks. Most of us are going to think immediately of the Great Depression. Others will think about the World War II and other wars. So all of those things tend to be linked to increased use of executive orders. So growth in the size and scope and complexity of government is part of that. Final thing is, and this brings us up to the present day, What some of it has to do is when Congress becomes very closely divided or gridlocked, then that opens up an avenue for the president to say, you know, things need to be done and I have this separate executive authority to do things. And that's why you heard Barack Obama say, for example, with a stroke of a pen, I can change things. Now it’s not in fact quite that easy.

REICHARD: Could you provide an example of executive orders meant to address a certain issue but led to an unintended consequence?

HOLT: Going back to Franklin Roosevelt and in the run up to World War II the US government was really starting to increase surveillance of people in the United States that might have links back to Europe and Japan. That has had longer-term consequences. And I don't think either Franklin Roosevelt or those around him in Congress or elsewhere fully anticipated. This is not a new set of concerns. In the first Trump administration, that immediate order on the so-called Muslim ban had all kinds of feed-on effects. One can argue that that increased some of the concern with the incoming Trump administration anyway in terms of its contacts with other parts of the world and within the United States. It also led to a whole range of efforts in the first Trump administration to have to continue to go back and redo those executive orders because they hadn't fully anticipated what differences they would make not only immediately with people trying to reach the United States, but also in entire other parts of the country. For example, places that have large numbers of folks that do a lot of travel back and forth, whether that's for business travel or family travel or a variety of things, none of those were fully anticipated because the response was to an immediate perceived problem and an effort to fulfill a campaign promise. I chose first Trump because that got a lot of media attention. But certainly one can look at the Obama administration as well as at the Biden administration and how it dealt with this whole range of immigration issues and issues at the border, certainly.

REICHARD: Karen Holt is a political scientist at Virginia Tech. Thank you so much.

HOLT: Sure. Wonderful to talk to you.

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