The Curious Evolution of the Executive Order

by Butler Snow LLP
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Butler Snow LLP

On January 27, 2017, barely a week into office, President Donald J. Trump issued Executive Order 13769 for the stated purpose of “Protecting the Nation from Foreign Terrorist Entry into the United States.” Both vigorously defended as “a measure . . . focused exclusively on . . . the safety of American citizens” and broadly denounced as an “unlawful . . . . attempt to discriminate against refugees on the basis of religion,” the order has raised important questions about the scope of Executive power. It also has revealed several fundamental misunderstandings about the function of American government.

First, Executive Orders are normal; they do not flout the separation of powers that is foundational to our Constitutional order. Every single American president, save one, has issued them. The lone exception is William Henry Harrison, who died one month after assuming office. Lest you persist in thinking Executive Orders inherently pernicious, consider that President Lincoln’s Emancipation Proclamation was an Executive Order. So, too, was President Roosevelt’s creation of the Works Progress Administration during the Great Depression. But an Executive Order also effected the internment of Japanese-American citizens during World War II. Such examples make plain that it is not the fact of Executive Orders, but instead their content, that determines their quality.

Second, Executive Orders, while legally binding, cannot contravene existing, enacted law (legislation). It is true that the Constitution grants the President considerable authority in the areas of military command, foreign policy, and law enforcement. Executive agencies, like the FDA and the NSA, also answer to the President. But Congress can pass laws that nullify Executive Orders. Further, Executive Orders issued by one President may be rescinded by another.

Finally, precisely because Executive Orders cannot contravene enacted law, they can be, and historically have been, successfully challenged in court. But it does not happen often. Executive Orders tend to fill gray areas in existing law. Statutory ambiguities and doubts about how otherwise clear legislation is to be implemented allow Presidents to supply their own answers. Courts tend to broadly construe a President’s authority to act in such circumstances; if Congress does not intervene, then a legal challenge is not likely to go far.

The fate of Executive Order 13769 is uncertain. Recently, a three-judge panel of the United States Court of Appeals for the Ninth Circuit affirmed a trial court’s decision to suspend significant portions of the order while a lawsuit that challenges its merits proceeds. President Trump’s administration may request reconsideration by the entire court or appeal directly to the Supreme Court. The outcome there is no easier to predict as the Court remains one short of its full complement of nine Justices (since the death of Justice Antonin Scalia last February), and a 4-4 tie would leave the Ninth Circuit’s ruling in place.

Regardless, Executive Orders, for better or worse, are here to stay. The test for every President is not whether to use them, but how.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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