Politics

Evan Horowitz | Quick Study

What’s an executive order? And, more importantly, how is Trump using them?

President Trump signed an executive order on border security and immigration enforcement.

AP

President Trump signed an executive order on border security and immigration enforcement Wednesday.

Donald Trump has had a busy first week, signing executive orders on topics from immigration to energy policy, health care to trade.

One signing at a time, he has shown himself ready to advance his sometimes-inflammatory campaign promises. There will be no pivot, no moderation, no fresh perspective borne of contact with the awesome power of his office.

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But the spate of executive orders has also raised a basic civics question: How much can Trump accomplish via unilateral action? Here’s what you need to know about the origin, power, and limits of executive orders.

What is an executive order?

The president is more than America’s commander-in-chief, and more than its chief diplomat. He also oversees federal agencies, and in that capacity he occasionally needs to provide details about what they should be doing and how best to use their resources.

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To get the message out, he has a variety of options, from meetings to memoranda. But the most formal is an executive order, which publicly expresses the president’s priorities for how best to use the federal government’s vast powers.

It’s not surprising, then, that when a new president comes into office, he often brings with him a stack of new executive orders. Think of it as the newcomer’s way of introducing himself to the rest of the executive branch, telling them to ignore the things his predecessor might have said, and reshaping them to reflect a new vision.

Obama signed nine executive orders in his first 10 days, Trump is merely following suit.

What can’t you do via executive order?

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Executive orders aren’t just suggestive or advisory. They are legally binding and subject to review by the courts.

But they also have limits. In particular, executive orders are not nearly as potent as the statutes passed by Congress. They only extend as far as the president’s own powers, which means they can’t be used to make new laws or allocate new funds.

To get a sense for how this works in practice, consider Trump’s executive order to start work on his signature border wall. Essentially the order did two things: 1) It informed the secretary of Homeland Security that building a wall is now an official priority of the US government; and 2) it ordered the department to reallocate already-available money to begin planning, designing, and building that wall.

Both these things seem well within the president’s authority, because the Department of Homeland Security is clearly an executive branch agency and since Trump is simply moving money around. However, Trump could not use the executive order to allocate new government funds to build and maintain the wall -- that would have to be done by Congress.

What are some of the most famous executive orders?

Every president has issued executive orders, all the way back to George Washington. But while a lot of these orders have been banal, some are counted among the great milestones of American history.

Lincoln’s emancipation proclamation was an executive order, as was Eisenhower’s decision to send federal troops to help integrate schools in Little Rock.

There are infamous orders, too. The internment of Japanese-Americans during World War II was authorized by an executive order, as was Lincoln’s suspension of habeas corpus in the Civil War.

How do Trump’s executive orders stack up?

While Trump’s orders and memoranda have garnered a lot of political criticism, there’s little suggestion of overreach or impropriety. In each case, Trump’s team has been careful to insist that everything be interpreted in ways that are consistent with existing law.

There is still, however, an open and interesting question about exactly when presidential priority-setting crosses into unconstitutional lawmaking.

When President Obama reestablished relations with Cuba, he stopped enforcing large parts of the longstanding US embargo with the country. But the embargo was codified by Congress, which raised questions about how far Obama could go before he ran afoul of congressional prerogatives.

Similar questions are now being raised about Trump, specifically his executive order on the Affordable Care Act, which calls for waiving any provision that would impose a “cost, fee, tax, penalty, or regulatory burden on individuals.”

The trouble here is that if you remove all penalties you jeopardize the entire program— because the Affordable Care Act doesn’t work without the individual mandate, and the mandate doesn’t work without some penalty for non-compliance.

So, here’s the question: If the Trump administration eliminates the penalty for people who refuse to purchase insurance, is that an exercise in presidential discretion or a backdoor way to overturn the law.

It’s still too early to assess the full impact of Trump’s executive orders, because we’ve yet to see how they’ll be interpreted and implemented. One of Obama’s earliest acts was an order closing the detention facility at Guantanamo Bay. It seemed a dramatic act at the time, but of course the order was never carried out.

What’s clear, for now, is that Trump has moved aggressively to advance his agenda via unilateral action. Only later will we know how effective that effort has been.

Evan Horowitz digs through data to find information that illuminates the policy issues facing Massachusetts and the U.S. He can be reached at evan.horowitz@globe.com. Follow him on Twitter @GlobeHorowitz
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