Before taking office, Donald Trump promised to issue a total of more than 100 executive orders once he was re-elected as president. The orders are expected to recalibrate government policy on everything from immigration enforcement to diversity initiatives to environmental regulation. They also aim to erase much of Joe Biden’s presidential legacy.
Trump is not the first U.S. president to issue an executive order, and he certainly will not be the last. My own research shows that executive orders have been a mainstay of American politics, but they have their limitations.
What is an executive order?
While the Constitution spells out common presidential tools like the veto and appointments, real executive power comes from reading between the lines.
Presidents have long interpreted Article 2 of the Constitution—such as “the executive power shall vest in the President” and “the President shall be responsible for faithfully executing the laws”—to give them full authority to enforce the laws through the executive branch. By any means necessary.
One primary way they do this is through executive orders, which are written directives from the president to agencies on how to implement the law. Courts have held that they have the force of law unless they violate the constitution or existing statutes.
Like other unilateral actions, executive orders allow the president to enact policy outside the regular legislative process.
That leaves a notoriously polarized and gridlocked Congress to respond.
Executive orders are therefore unilateral actions that give presidents several advantages, allowing them to act first and act alone in policy development.
How have they been used historically?
Since the first systematic cataloging of executive orders in 1905, every U.S. president has issued executive orders.
In March 2016, then-presidential candidate Donald Trump criticized President Obama's use of executive orders.
"Executive orders were very recent. No one had heard of executive orders. And then all of a sudden, Obama - because he couldn't get anyone to agree with him - he started signing them like butter," Trump said . "So I want to repeal most of the executive orders."
There is little truth to this statement.
Obama signed fewer orders than his predecessor - an average of 35 per year. Trump issues an average of 55 copies per year.
Contrary to conventional wisdom, presidents have relied less and less on executive orders over time. In fact, modern presidents use far fewer orders per year, an average of 59, than pre-World War II presidents, who averaged 314.
Executive orders have been used in everything from routine federal workplace policies like ethics commitments to the controversial 2017 travel ban restricting entry into the United States.
They are used to manage public lands, the economy, civil servants and federal contractors, and respond to a variety of crises, such as the Iran hostage situation and the COVID-19 pandemic.
Presidents often use them to advance their biggest agenda items, by establishing working groups or policy initiatives and guiding rulemaking, the process of formally turning laws into written policy.
Usage restrictions
Why don’t presidents always issue executive orders, a seemingly powerful policy tool? Because they have serious limitations.
First, the executive order may not be as unilateral as it appears. Drafting the order involves a time-consuming bargaining process with various agencies negotiating its contents.
Second, courts may overturn an executive order if it is issued without proper legal authority—although this rarely happens.
Trump's 2017 travel ban faced multiple legal challenges before it was crafted to satisfy the courts. On the other hand, many of his initial orders did not face legal scrutiny because they simply required agencies to work within their existing powers to change important policies like health care and immigration.
Congress is another obstacle because they give the president the legal authority to set policy in specific areas. By retaining this authority, Congress can prevent the president from issuing executive orders on certain issues. If the president issues an order anyway, courts can overturn it.
Lawmakers can also punish presidents for issuing executive orders they don't like by undermining legislative agendas and nominees or defunding programs.
Even a polarized Congress can find ways to sanction executive orders the president doesn't like. For example, committees could hold oversight hearings or initiate investigations—both of which could lower a president's public approval rating.
Today's Congress has the ability to impose these restrictions, and they more often impose them on ideologically opposed administrations. That's why scholars have found that modern presidents under divided government issue fewer executive orders, contrary to popular media narratives that portray executive orders as a way for presidents to circumvent Congress.
Finally, executive orders are not the final word on policy. They can be easily revoked.
New presidents often reverse previous orders, especially those of political opponents. For example, Biden quickly reversed Trump’s directive to exclude undocumented immigrants from the U.S. census.
All recent presidents have issued revocation orders, especially in their first years. However, they face obstacles in doing so, including public opinion, Congress, and legal restrictions.
Regardless, executive orders are not as durable as laws or regulations.
Limitations on Trump
Some of Trump's executive orders, especially those focused on the economy, will require legislation because Congress holds fiscal power.
Although Trump inherited a Republican House and Senate, their majorities are razor-thin and moderate party dissidents could thwart his agenda. Even so, he will undoubtedly use every available legal power to unilaterally translate his goals into government policy.
But then again, these directives could be struck down by the courts — or with the stroke of a pen by the next president.
This is an updated version of a story originally published on January 26, 2021.