How Trump Tests What Presidents Can Do on Their Own

(Bloomberg) -- Even in America’s system of checks and balances, the president wields some unilateral powers. These include issuing executive actions -- orders and memoranda -- that can instantly change the course of American governance without any involvement by Congress. Use of such presidential directives ballooned in the early-to-mid 20th century. Some critics worry they can be overused, even abused, by the inhabitant of the White House. President Donald Trump rekindled that debate with a set of directives in response to the economic fallout of the coronavirus pandemic.

1. What’s an executive action?

It’s a signed directive from the president that can guide operations of the federal government and carry the force of law. The most formal and best known is the executive order. Presidents also can issue memoranda, to direct administrative matters, and proclamations, which can address ceremonial matters (like federal observances) or substantive ones (like trade policy).

2. What gives the president this power?

“The U.S. Constitution does not define these presidential instruments and does not explicitly vest the president with the authority to issue them,” according to the Congressional Research Service. “Nonetheless, such orders are accepted as an inherent aspect of presidential power.”

3. What directives has Trump issued?

The 13 he signed in his first week as president included orders closing the border to certain refugees and cutting federal funds to “sanctuary cities” that decline to enforce certain U.S. immigration laws. Most recently, Trump announced four executive actions to circumvent stalled congressional negotiations on the next round of economic stimulus in response to the pandemic. He ordered a partial extension of enhanced unemployment benefits, the deferred collection of payroll taxes through the end of 2020, an extension of moratoriums on evictions and foreclosures at properties with federally backed mortgages, and a halt to payments and interest accrual on federally held student loans.

4. Can he do that?

An executive order or memorandum carries the force of law only if it’s “based on power vested in the president by the U.S. Constitution or delegated to the president by Congress,” according to the Congressional Research Service. Critics including House Speaker Nancy Pelosi say Trump’s latest unilateral actions fail that test. (Pelosi called them “absurdly unconstitutional.”) But suing to stop Trump’s actions would leave Democrats with “a lot of explaining to do” to Americans in need of the promised benefits, Treasury Secretary Steven Mnuchin said. Many of Trump’s executive orders have faced challenges in the courts. His travel ban, for instance, had to be revised twice before it passed legal muster. Legal challenges aside, two of Trump’s latest orders also require buy-in from states and employers, without whose participation they won’t accomplish much.

5. Who can change an executive action?

Only the sitting president can overturn one, by issuing another one. For instance, a Jan. 23, 2017, memorandum by Trump, forbidding international nonprofit organizations that receive federal money from providing abortion services, revoked a 2009 Barack Obama memorandum that in turn had revoked a 2001 George W. Bush memorandum. Executive actions don’t require approval from Congress, and Congress can’t overrule them if they are rooted in the president’s constitutional authority. What Congress can do to undermine any executive action is to pass legislation that makes carrying out the order impossible, such as denying funding to a position or office the president creates.

6. Has Trump exercised this power a lot?

According to the American Presidency Project at the University of California at Santa Barbara, Trump had issued 172 executive orders as of July 24, for an average of 49 per year. That compared to an annual average of 35 under Obama and 36 under Bush.

The Reference Shelf

• The Congressional Research Service report on presidential actions.
• The White House list of Trump’s executive orders and memoranda.
• The American Presidency Project has tallied executive orders of all 45 presidents.
• The American Bar Association explains how executive order documents are formatted and numbered.

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