Executive Orders

In the immortal words of Ron Burgundy: well, that escalated quickly. I mean, that really got out of hand fast…

Donald Trump has now been in office for a grand total of 10 days. In that time, we have watched aghast as the new President delivered an inauguration speech portraying the United States of America as an apocalyptic dystopia from a ‘Mad Max’ film. We have listened incredulously as we were told to ignore our own lying eyes when judging the size of the crowds at his inauguration, giving rise to the now-infamous concept of ‘alternative facts’. We have even witnessed him launch accusations of historically-unprecedented voter fraud without a single shred of supporting evidence, despite the fact that HE WON THE F*****G ELECTION!

More importantly, however, we have seen the new President sign a seemingly never-ending series of Executive Orders on subjects varying from abortion funding, to government lobbying, to building his famous Wall on the US-Mexican border, and culminating last week in the so-called ‘Muslim Ban’.

In order to understand what this all means, it is important to start at the beginning: what is an Executive Order?

Simply put, an Executive Order (hereafter referred to as an EO) is a legally-binding order delivered by the President to Federal Agencies. In other words, the Boss (the President) gives his employees (Federal Agencies) an order he/she wants them to follow.

The usage of EOs dates all the way back to the first President, George Washington. Since then, every President in history has made use of them. Some of the most consequential decisions in American history were made by Executive Order, including Lincoln’s Emancipation Proclamation (which freed the slaves) and Franklin D. Roosevelt’s internment of Japanese-Americans during World War II (which…did not).

Part of the reason they are so controversial is that they represent a President flexing his/her muscles of autocratic authority. He/she doesn’t have to consult Congress or follow the normal legislative procedure to get something he/she wants done. Often, they are issued when a President has failed to get a desired piece of legislation passed through Congress, as was the case with President Obama’s 2014 EO on immigration.

Having said that, EOs are still subject to checks and balances. It is up to the Courts to decide whether a President has overstepped his/her authority when issuing a particular EO. If they decide against the President, then the EO will be struck down. An EO is also more of a ‘sticking plaster’ than a permanent solution to a problem, as if the next President disagrees, he/she can simply cancel previous EOs with the stroke of a pen. Legislation approved by Congress and signed into law by the President cannot be so easily undone.

In regards to the current series of EOs, there are certain to be a number of legal challenges brought against the Trump Administration, particularly in regards to the ‘Muslim Ban’. Whilst the President does have a large amount of authority when it comes to allowing foreigners access to the US, this EO seems particularly vulnerable to being ruled unconstitutional. Its language was so absurdly vague and unclear that its implementation was destined to result in the chaos witnessed at US airports over the weekend. Lawyer and blogger Benjamin Wittes provides an excellent and scathing review of its many limitations:

 

“My take is that it is so poorly written that it’s hard to tell the impact. One of the reasons there’s so much chaos going on right now, in fact, is that nobody really knows what the order means on important points….”

 

The reason for this ineptitude seems to have been uncovered by a number of news networks: apparently this particular EO was not subject to review by anyone except the White House’s own policy team.

Normal procedure is for an EO to be reviewed and discussed beforehand with the relevant agencies so that they know how to implement it. In this case, that would mean the Department of Homeland Security. EOs are also normally reviewed by the Justice Department to make sure there are no legal issues. According to NBC News, none of the above took place. This led to the farcical and disgraceful scenes of legitimate green-card holders being detained or denied entry to the US, with some Border Agents even allegedly denying detainees their right to access legal counsel.

In summary, EOs have a long history dating back to the foundation of the USA and are not inherently sinister. They are subject to legal challenge and can be struck down if they are deemed to be unconstitutional by the Courts. It is also worth noting that, despite perceptions, President Trump has actually issued less EOs than President Obama had by the same stage of his administration.

However, if the proper procedures are ignored and relevant departments are not consulted on their formation, then EOs can cause the kind of chaos witnessed over the weekend. Whilst Trump himself might not care about the immediate consequences, his political capital (such as it is) will inevitably be diminished. Incompetence is never a good look for any President.

 

 

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