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Executive Orders: Is This Normal? What Happens Next?

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It’s a month after the inauguration, and Trump has signed so many executive orders he’s running out of gold-plated pens (made in China). This seems unprecedented – or, as Trump would say, “unpresidented.”

Is this typical for a new president? Are these executive orders laws, or are they more symbolic? What steps must be taken to execute them – or to stop them? What’s happening next with the executive order on the border wall? Here’s what you need to know.

What’s an executive order?

“Executive orders are technically a specific kind of law that a president can sign,” Karen Hult, chair of the Department of Political Science at Virginia Tech, told the Civics 101 podcast. “…What an executive order is doing is elaborating on [a law that Congress has already passed] and sending direction and guidance to executive branch agencies and executive branch officials about how they should implement that law.”

A good example is DACA, an executive order from President Obama. Congress had passed laws regarding immigration enforcement, but it hadn’t allotted enough funds for deportations. Since it’s financially impossible to deport all undocumented immigrants, it was necessary to prioritize. So Obama issued an executive order that directed agencies to stop deporting young people who are contributing to their communities. 

Presidents can also sign an executive memorandum, which is essentially the same thing as an executive order (EO), except it doesn’t have to be submitted to the Federal Register and be published. Executive orders and memoranda are typically considered to be equally binding, but since neither is mentioned in the Constitution, the law is not clear. The two are often combined under the general term “executive actions.”

Is it normal to sign so many executive orders?

EOs are actually very common. Obama signed 276, George W. Bush 291 and Bill Clinton 364. Franklin D. Roosevelt leaves them all in the dust with a whopping 3,721.

In his first two weeks, Trump signed one more executive action (orders plus memoranda) than Obama did during the same time period. However, while Obama signed long-anticipated and slow-acting EOs – such as closing Guantanamo Bay and secret prisons within a year, plus ending the practice of torture – Trump has issued far more controversial executive actions. He’s ordered the construction of a border wall, the Keystone XL Pipeline and Dakota Access Pipeline. He’s targeted sanctuary cities. He’s ordered the rollback of Obamacare. And the list goes on.

In 2012, Trump criticized Obama for signing too many executive orders.

In 2012, Trump criticized Obama for signing too many executive orders.

Is it just that they’re controversial, or is there something else different about Trump’s executive actions?

Yes, there are differences between some of Trump’s executive orders and typical EOs of the past. Usually, White House counsel and policymakers discuss whether to issue an EO, how to roll it out, and how it should be phrased. Then it goes through a vigorous vetting process with the legislative affairs team, other policymakers and top people in the executive branch agencies. 

This was not the case with the recent EO that banned people from seven majority-Muslim countries from entering the U.S. “It appears as though it did not go through the complete vetting process,” Hult told Civics 101. “The Homeland Security Secretary did not know about it until he reportedly read about it in the newspaper. The Immigration and Customs Enforcement officers did not know how they were supposed to enforce it. Those kind of problems might have been picked up if they had done a little bit more systematic and thorough vetting.”

In other words, the executive order intended to mandate “extreme vetting” wasn’t vetted.

How can executive actions be overturned?

Congress can halt or reverse executive actions, though it has done so only a handful of times in history. Also, the court can challenge EOs on the grounds that they are unconstitutional or violate citizens’ rights, for example.

We saw this recently when the Ninth Circuit Court unanimously rejected Trump’s effort to reinstate the so-called Muslim travel ban. However, Trump plans to issue a revised executive order on the travel ban, and the court has agreed to wait for that. So we haven’t seen the last of that EO.

What about the executive order on the border wall?

On January 25, Trump issued an EO instructing the Department of Homeland Security to “immediately plan, design, and construct a physical wall along the southern border.” Because the executive order blocking travelers from Muslim-majority countries was implemented instantly, many people worry that this EO will also move forward “immediately.” But there’s a big difference between the two EOs: tens of billions of dollars.

Presidents can only spend funds allocated by Congress for that specific purpose. So the Secretary of Homeland Security will have to search through funds already allotted to “border security” and find enough spare money to pay for the wall. Cost estimates for a wall vary enormously, but independent assessments have put it at somewhere between $15 billion and $40 billion. It’s quite possible Congress will determine the wall is cost-prohibitive.

Furthermore, the wall faces legal hurdles. Bilateral treaties forbid the U.S. and Mexico from constructing barriers that disrupt the flow or floodplains of the Rio Grande and Colorado River, both of which flow along the border. This could mean constructing the wall deeper inside the United States, potentially raising further problems with private and state land ownership.

Also, numerous tribal lands span the border, and Native American communities such as the Tohono O’odham Nation vehemently oppose building a wall in their territory.

What’s more, 67 percent of the border is privately owned or state-owned. When the Bush administration began constructing the current border wall, many private landowners refused to sell, spurring the government to file eminent domain lawsuits. This caused delays and cost increases – plus eroded democracy by forcing Americans off their land.

We’re certainly in for a long haul and many debates in Congress about this particular EO. Only one thing is certain: Despite Trump’s claim that building a wall will be easy and inexpensive, it would be the exact opposite.