Some things to know about executive orders: [View all]

[Ocelot II]

Last edited Sun Jan 26, 2025, 06:31 PM - Edit history (1)

An executive order is a directive by a president relating to the management of executive branch agencies. They have been used by almost every president since (and including) Washington. Lincoln's Emancipation Proclamation was an executive order containing explicit directions to the Army, the Navy, and other executive departments. But their power is limited to the operation of the executive branch, and most importantly, they can't be used to repeal or amend a federal statute or amend the Constitution. They can be and often are challenged in court on claims of constitutionality or executive branch overreach. One of the most famous instances of such challenges was to Truman's EO 10340, which directed the Secretary of Commerce to place all the country's steel mills under federal control. This EO was found invalid in Youngstown Sheet & Tube Co. v. Sawyer, in which SCOTUS held that the president lacked the power to seize private property without express authorization from Congress, and that the EO was an attempt to create law rather than merely direct the operations of the Commerce Department.

Trump's EO directing all federal government agencies to refrain from issuing citizenship documents to anyone born in the US to undocumented immigrant parents is an example of an attempt to legislate by EO, as it is contrary to the plain terms of the Fourteenth Amendment’s Citizenship Clause and Section 1401 of the Immigration and Nationality Act. So far a federal judge in WA has issued a TRO prohibiting its implementation, but it will probably go to SCOTUS eventually.

The point of all this, though, is to try to answer the question of why it appears that nothing is being done about Trump's blizzard of extreme EOs. I think something is being done, but we aren't seeing it yet because that "something" probably consists in preparing litigation - which is the only way to deal with these EOs. Congress couldn't do anything about them even if Democrats had a majority (Trump would veto anything they did). I believe we will see many lawsuits by many different agencies, organizations and individuals but it takes time (and a lot of money) to do this. If we want to see some effective action we can support the organizations like the ACLU that can handle these cases. We can keep at our Democratic representatives, encourage them to speak more loudly, but the real action will come out of litigation. Watch for it and help if you can.