Republican President-elect Donald Trump promised to reshape US politics with a flurry of executive orders just hours after taking office next week.
See below what the president can and cannot do through a decree.
What is a decree?
A decree is a determination issued unilaterally by the president that has the force of law.
Notable decrees issued by Trump in his first term include one that banned travel from some Muslim-majority countries and another that expanded the leasing of offshore waters for oil exploration. Trump issued 220 executive orders in his first term, more than any president in a single four-year term since Jimmy Carter. US President Joe Biden issued 155 decrees until last Monday.
After a president signs an executive order, it can take effect immediately or within a few months, depending on whether it requires formal action from a federal agency or not.
For example, Trump’s travel ban from Muslim-majority countries went into effect immediately because it invoked a 1952 federal law that explicitly gives the president the authority to bar “any class of aliens” from entering the country if he considers them harmful. .
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Other decrees instruct federal agencies to take action. For example, Democrat Biden ordered health agencies to take action to protect access to abortion after the US Supreme Court allowed states to ban it. This did not take immediate effect, but agencies in the following months approved new rules through the usual rulemaking process, such as a regulation designed to protect the privacy of people who have abortions.
Where does the power to issue decrees come from?
Although the extent of the president’s power to issue executive orders has been disputed, legal experts agree that this power originates in Article 2 of the U.S. Constitution, which makes the president the commander in chief of the Armed Forces and the head of the Executive Branch of the United States. government, or in powers explicitly granted to the president by Congress.
Laws passed by Congress typically delegate rulemaking authority to federal agencies, which ultimately report to the president. Many executive orders instruct agencies to take actions or create rules to meet certain goals, effectively functioning as an announcement of the president’s policies.
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What can’t the president do through decrees?
The president cannot create new laws beyond the powers specifically granted to him by the Constitution or Congress simply by issuing an executive order.
If the order directs agencies to take action, any resulting agency rulemaking will be subject to the federal Administrative Procedure Act, which requires agencies to allow public comment on any rules and prohibits rules that are “arbitrary and unpredictable.”
Agency rules also cannot violate basic constitutional rights, such as due process and equal protection under the law, or laws that have been passed by Congress.
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Can decrees be blocked by the courts?
Yes. Decrees can be challenged in court and have already been blocked for exceeding the president’s authority.
In 2017, a judge blocked a Trump order that sought to withhold federal funding from so-called sanctuary cities that did not cooperate with his immigration policies, concluding that the president could not impose new conditions on federal spending that had been approved by Congress.
In 2023, a federal appeals court blocked Biden’s executive order requiring federal employees to be vaccinated against Covid-19, finding it overstepped his authority by interfering in personal medical decisions.
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On the other hand, courts have often upheld the president’s executive order powers, as when the Supreme Court in 2018 upheld a travel ban from Muslim-majority countries.
