US presidents make executive orders. How will Trump use his?

Donald Trumpis gearing up for what insiders are reportedly calling a “shock and awe” first day in the White House, signing scores of executive orders into force that will likely cover immigration, energy and trade policy.

On top of that, people handed criminal convictions for their involvement in the January 6 riots are likely to be graced with pardons by the re-minted president.

Trump isn’t the first to have a big first day in the president’s chair. Joe Biden signed nine executive orders on his first day (though the suggestion Trump might sign 100 would outpace all other presidents before him).

It brings into focus the role of the executive order, presidential provisions and how the 47th United States president might wield power during his second time in office.

What is an executive order?

The US Congress makes and passes laws, but the president can issue his own instructions to the federal government.

While there’s no explicit mention of executive orders in the US Constitution, the president, as chief executive, can issue these directives to federal officials and agencies.

Are they more powerful than laws passed by congress?

Executive orders aren’t laws but can have the powers and force of them.

Still, “they’re not statutes and legislation that is passed by both chambers of congress and signed by the president… has the status that overrides,” says Bert Rockman, a political scientist at Purdue University, US.

How many executive orders do presidents issue?

There are no limits on presidential orders and presidents have issued anywhere from none (William Henry Harris, in power for less than a year) to more than 3,700 (Franklin D. Roosevelt).

Donald Trump was one of the more prolific chief executives in recent years — averaging 55 a year, the highest yearly average since Jimmy Carter (80).

What checks exist on the use of executive orders?

The modern US presidency is cast as an all-powerful leadership position, and with the ability to sign-off executive orders, it might seem like the position can do as it pleases.

But that’s not quite true: there are measures in place to ensure no one section of government wields too much power. 

The first check is that a president’s orders can be challenged in the courts.

This happened to one of Joe Biden’s 2023 orders requiring federal employees to be vaccinated against COVID-19, and a Trump decree that tried to change funding arrangements for so-called “Sanctuary Cities” in 2017.

But while the courts can strike down orders that are illegal, they can also rule in a president’s favor.

Take Trump’s 2017 travel ban on foreign nationals — in particular those coming from predominantly Muslim nations — which was challenged in the judicial system. Eventually, following modifications, it was found to be legal by the Supreme Court.

“It got challenged quickly, within a few days, in the federal courts,” said Mitch Sollenberger, a political scientist at the University of Michigan-Dearborn. “It eventually went all the way to the Supreme Court and [it] said ‘yeah, he can do this.'”

Congress itself can also change or abolish executive orders through the legislative process.

Ultimately, Sollenberger suggests the White House would prefer to issue executive decisions that will avoid challenge — and thus delay — in the courts or by congress.

“It’s in the interests of any president… to try at least do things within the norms [and] in the context of the political environment that he’s in,” Sollenberger said.

Trump’s successor — and whether Democrat or Republican there will be one, as he is constitutionally limited to two terms in office — could also issue new orders reversing his actions during his final term. This happened when Joe Biden signed an order to rejoin the Paris Climate Agreement — which Trump had exited during his first term.

Is this the only way US presidents wield authority and power?

The president has plenty of scope to run the United States.

Typically, the president signs Congress-approved bills into law. He can also veto bills and send them back to Congress.

He’s the head-of-state of the government and the military and the office represents the US on the global stage — attending negotiations, appointing officials and representatives and hosting foreign leaders.

As well as executive orders, he can issue presidential memoranda (which serve similar functions) and proclamations, which are often ceremonial.

He also has responsibilities that are checked by other estates of US society.

For instance, the president can nominate his cabinet and Supreme Court judges, but these nominations require senate approval.

This also applies to foreign conflict. While the president is commander-in-chief, only Congress can declare war.

This point may come up should the president seek to invoke the Alien Enemies Act to deport undocumented migrants to the US, as suggested during his campaign. That law requires the US to be at war with a specific nation — such as Mexico — and would therefore require Congress to assent to a declaration of war.

The president can also define the US relationship with other nations through treaties and other agreements. It’s expected, for instance, that Trump will again pull the US out of the Paris Climate Agreement and the World Health Organization.

While there are limits to how a president can act, requiring the Senate or Congress to “play ball”, Donald Trump does come to power in unusual circumstances — he will be a Republican president with majorities in both houses of Congress and a conservative-slanted Supreme Court. Though it may not all be smooth sailing and may even result in conflict if he needs to negotiate with Capitol Hill.

“Even though he has a Republican congress, the margin in the House right now is just one person — one vote,” said Rockman.

Edited by: Jess Smee