Every other Tuesday, the team behind Civics 101 joins NHPR’s All Things Considered Host Julia Furukawa to talk about how our democratic institutions actually work.
As of Tuesday, President Donald Trump has signed nearly 50 executive orders since the start of his second term in office.
This week, Civics 101 host Nick Capodice explains how executive orders work,how past presidents have used them, and how public perceptions around them can change, depending on who’s in office.
Transcript
Let's talk [about] executive orders. What can and can't they do?
Well, executive orders are one of several of what we call executive actions. In brief, an executive order is something that a president signs, and it has the force of law, even though it does not involve Congress or the courts in its creation. It directs the executive branch to do something to execute a law. These are more and more common as Congress is passing fewer and fewer laws. And this trend is on course to continue.
But once an order has been signed, it goes through a review process by the Office of Management and Budget and a bunch of other folks in Congress. The courts weigh in, and then it is printed in something called the Federal Register. Now, this is a huge step. It's very important. It signifies that an order is official when it is printed there.
OK. So this is a big sweeping order, but what are the limits of them and how are they checked by other powers?
They are big and sweeping. But the biggest check on executive actions is what we call authorization. This means the president must find that they have the authorization, [that] they've got the power granted to them, either from the Constitution or from a statute, from a law that has been passed by Congress in the past, or else they can't do the action. Now, Congress can also pass a law to override an executive order, and courts can deem an order unconstitutional.
So how common are these executive orders? Have any other presidents issued so many right out of the gate like President Trump did on his first day?
Executive orders are very common. Every president except for William Henry Harrison has signed them, though some presidents signed a heck of a lot more than others. It is the norm that on day one, the first executive orders come from a president and say, “Let's undo a bunch of orders from a former president.” That was Trump's first order. It was named Initial Rescissions of Harmful Executive Orders and Actions. And in this one order, he undid 68 orders that former President Joe Biden had signed. But while orders are indeed common, the wide reaching scope of Trump's orders on day one is unprecedented. Usually, a president will try to get things done through legislation first, but in this instance, there was no attempt to work with Congress at all.
So how do the public and Congress feel about executive orders? Are they generally popular?
That's a good question. To sort of broadly generalize, people love executive orders when their preferred candidate is in power, and people despise them when they are not. As an example, Trump stated on many occasions that the reason Barack Obama was a bad president was that he overused executive orders. I have a quote from 2016. Trump said, “That's the problem with Washington. They don't make deals. It's all gridlock. And then you have a president that signs executive orders because he can't get anything done. I'll get everybody together.”
But the most interesting part of your question is what Congress feels about executive orders. Because right now, the Republicans have a majority in both houses in Congress, meaning they should, in theory, be all for all these new orders. However, every time that a president circumvents Congress to take action through an order, that removes a sliver of power from them. So if members of Congress are not legislating, if they're not going through the tried and true, complicated Civics-101-how-a-bill-becomes-a-law process with negotiation and committees and talking to constituents in the comment period and a vote, if they're not doing that, why are they there in the first place?