“Stroke of the Pen. Law of the Land.” The Power and Appeal of Executive Orders
by Elizabeth Van Nostrand, JD, and Tina Batra Hershey, JD, MPH
Crossroads: Law and Public Health addresses topics related to the intersection of law and public health. This series highlights the perspectives of two attorneys turned academicians and explores legal and policy issues that impact public health.
In his first three weeks in office, President Trump issued 12 Executive Orders (EOs), two proclamations, and a dozen Presidential Memoranda, designed to carry out promises made on the campaign trail and advance the Administration’s agenda. These instruments serve as messengers to the American people and the international community regarding President Trump’s top priorities.
President Trump’s earliest EO, signed on his first day in office, began dismantling the Affordable Care Act. This was not the only EO with an impact on public health. Others include a hiring freeze for federal workers, which will impact agencies that advance public health goals, and the reinstatement of the Mexico City policy — a ban on federal funding to international groups providing reproductive health services that could include abortions. At this rate, Trump is on track to issue 260 EOs this year, which, if this projected trajectory plays out, would mean over 1,000 during his four-year term.
EOs are powerful because, when executed properly, they have the full force and effect of law without cumbersome rulemaking processes. But there are limits. Under the US Constitution and its separation of powers design, the president can issue EOs only as authorized by statute or the United States Constitution. Also, EOs can only be issued to executive branch agencies. Although individuals may ultimately be impacted by EOs, they cannot be the direct focus of them.
So what can be done if there is a perception that the president has exceeded the executive power granted by the Constitution? There are three ways to challenge EOs. First, a judicial challenge could be launched. This tactic was employed by the states opposing the president’s EO that initiated a travel ban against seven predominantly Muslim nations. Although, historically, judicial confrontations of EOs have not been widely successful, the opposition won several of its initial battles against the EO. US District Court Judge James Robart blocked the travel ban nationwide. The US government then petitioned the federal appellate court for an emergency request to reinstate the ban, but on February 9, a three-judge panel in the 9th Circuit ruled against it. If the president were to seek an appeal to the US Supreme Court, it may be difficult for him to prevail at this time since it would take five justices to reverse the 9th Circuit decision. However, Trump will soon fill Justice Scalia’s vacant seat with a nominee of his choice; moreover, three additional seats on the high court are held by justices over the age 75, all of whom are considered liberal members of the Court. If President Trump fills these seats during his administration, it makes recognition of excessive executive power by the Supreme Court more unlikely.
Second, Congress can amend or change the law affected by an EO, thereby effectively rendering it moot. To countervail this legislation, the president could veto the amended statute, sending it back to Congress for another vote. Just like with any other veto challenge, it takes a 2/3 congressional supermajority vote to override an EO. Currently, there are 535 members of Congress – 292 Republicans, 239 Democrats and 2 Independents. Assuming for the sake of argument that all of the Democrats and Independents would vote unanimously to overturn a veto, 115 Republicans would need to vote against party lines to undermine a Trump EO.
Third, a sitting president can revoke any EO issued by his predecessors. At the very earliest, the next president could rescind Trump’s EOs in about 1,000 days from now. And, if Trump wins a second term, that day would be even further away.
“Stroke of the pen. Law of the land. Kinda cool” was how Bill Clinton advisor Paul Begala characterized EOs. It appears that President Trump agrees with this sentiment. Of course, it is premature to guess what President Trump may or may not do for the rest of his term and what effect his EOs will have on the public’s health. But, for better or worse, the adage seems to be something where the Trump and Clinton camps can finally find consensus.
Elizabeth Van Nostrand, JD, is an Assistant Professor in the Department of Health Policy andManagement at Pitt Public Health, an Adjunct Professor in the School of Law, a recent Robert Wood Johnson Foundation Fellow, Director of Pitt Public Health’s JD/MPH program, and Principal Investigator/Director of the Mid-Atlantic Regional Training Center. [Full bio].
(Photo: University of Pittsburgh Graduate School of Public Health)
Tina Batra Hershey, JD, MPH, is an Assistant Professor, Health Policy and Management, at the University of Pittsburgh Graduate School of Public Health and an Adjunct Professor at the University of Pittsburgh School of Law. She is also the Assistant Director for Law and Policy at the Center for Public Health Practice at Pitt Public Health, where she researches legal, policy, and ethical issues related to the delivery of health care and emergency preparedness. [Full bio].