Tuesday, January 21, 2025

What is an executive order and why is it even legal?

Donald Trump is expected to sign a record-breaking 100+ executive orders on his first day as President ("Day 1", as he would have it). He had them all ready and waiting. Here's a quick summary of the main ones, and it makes for some scary reading. During his first term he signed more executive orders than any other recent president; his second term is likely to blow it away. A particular attraction for him is that there is little to no oversight from Congress, and he gets to feel like a bona fide dictator.

But what is an executive order anyway, and why are they allowed? An executive order is basically a legally-binding written order by a president which does not require congressional approval. Their authority comes from Article II of the Constitution - "The executive power shall be vested in the President of the United  States" - although this is so vague as to be almost useless as a guide.

Almost all US presidents use them - Ronald Reagan and Bill Clinton particularly liked them, although even they can't hold a candle to Franklin D. Roosevelt, Woodrow Wilson and Calvin Coolidge, whose use of them numbered into the thousands. Donald Trump REALLY likes them.

They can be used for relatively minor things, like establishing a new national holiday or renaming the Gulf Mexico, or much more substantive issues like nationalizing an industry or instituting mass deportations or mator trade tariff changes. increasingly they are being used to reverse an executive order of a previous President in a potentually unending back-and-forth.

Technically, Congress can pass a law to override an executive action (although the President may be able to block that), and technically their legality can be reviewed by the Office of legal Counsel (which doesn't always happen) and they can be reversed by the courts if they are illegal or unconstitutional. But in the main, a President's executive orders stick, at least for a few years.

It seems ridiculous to me that such a powerful and essentially unregulated political tool can reside in theg hands of a single individual. An unscrupulous or mentally unbalanced president could enact all sorts of petty or dangerous laws (sound familiar?) with impunity, contrary to the wishes of the governing party or Congress in general, and certainly against the will of the populace. 

How is this democratic? A loose cannon like Donald Trump could bring in all sorts of wacky rules to the detriment of the country, and indeed of the whole world, without any congressional agreement or legal regulation (especially given the tame Supreme Court Trump has engineered, the generally pro-Trump Republican majority in Congress, and the fact that he has surrrounded himself with a cabinet of fiercely loyal acolytes, regardless of their experience in their jobs, or lack thereof). 

I'm not aware of anything even remotely similar to this system of executive orders in other jurisdictions like Canada or the UK.

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