Executive Orders 101

photo - President Obama signs an executive order
photo - President Obama signs an executive order
Former President Obama signs an executive order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity. (photo: White House Archives)

Can President Trump cancel President Obama’s “unconstitutional” executive orders?

Former President Barack Obama, like most of the presidents that recently preceded him, issued about 300 executive orders. While on the campaign trail, President Donald Trump promised to cancel President Obama’s “unconstitutional” executive orders, and during his first days in office, President Trump has signed a number of executive orders of his own.

Through executive orders, presidents are able to direct the work of administrative agencies and implement authority granted to their office by a federal statute or the U.S. Constitution.

Executive orders are controversial because no provision of the Constitution explicitly authorizes them. Regardless, they have been used by every president (except one) since George Washington.

Executive orders, while considered to have the force of law, can’t be used to overturn laws – but the orders themselves can be overturned by Congress.

The U.S. Supreme Court has declared some executive orders unconstitutional. Perhaps the most famous example is the 1952 case of Youngstown Sheet & Tube Co. v. Sawyer. The Supreme Court struck down President Harry Truman’s executive order directing the Secretary of Commerce to seize and control all American steel mills. The Supreme Court ruled that neither the Constitution nor the laws of the United States authorized this action.

More recently, the Supreme Court agreed to decide if President Obama’s executive order allowing certain undocumented immigrants to stay and work in the United States indefinitely was unconstitutional. The Supreme Court issued a 4-4 decision last summer which effectively affirmed a lower court ruling striking down the executive order on grounds other than its constitutionality.

Can President Trump cancel President Obama’s “unconstitutional” executive orders? Yes – and he can reverse President Obama’s “constitutional” executive orders as well. For example, President Trump has already reinstated the “Mexico City Policy” by executive order, which prohibits non-governmental organizations that receive federal funds from providing or promoting abortions overseas. Since President Ronald Reagan, Democrat and Republican presidents have alternatively cancelled or reinstated this policy by executive order.

More relevant to state and local governments, President Trump may reverse Obama's executive orders on climate change, energy, and immigration.

About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

photo - Lisa Soronen
photo - Lisa Soronen
Lisa Soronen
Executive Director, State and Local Legal Center
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