U.S. President Donald Trump has so far signed 18 executive orders and memos in his first 12 days in office, but can any of them be revoked? Some of the orders have drawn ire from human rights advocates, business executives and even federal judges from various states across the nation.
While it may seem like an unprecedented grab of authority for Trump to sign 18 executive orders in just 12 days, his predecessor Barack Obama actually signed more executive orders in the same period of time (in his first 12 days as President in 2009, Obama signed 19 executive orders). Ironically, Trump was the one who accused Obama of “constantly issuing executive orders that are major power grabs of authority” during his first term in 2012.
Why is @BarackObama constantly issuing executive orders that are major power grabs of authority? This is the latest
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— Donald J. Trump (@realDonaldTrump) July 10, 2012
But Trump’s executive orders face even more criticism in the U.S. and around the world than Obama’s orders ever did. Most notably, Trump came under fire for signing an immigration order which places a 90-day ban on entry to the U.S. from six Muslim-majority countries and indefinitely blocks Syrians from entering the U.S.
Protests erupted at airports across the U.S. in the wake of the order, while the American Civil Liberties Union challenged it with a lawsuit. But Trump appears to be adamant about his decision to adopt “extreme vetting” measures.
On Monday, he fired Sally Yates from her position as acting U.S. attorney general after she criticized his executive orders. Yates advised the Justice Department not to enforce Trump’s immigration policies, raising doubts that the executive order was not “legally defensible.”
Three ways to revoke executive orders, but none are likely to happen
So is Trump’s executive order on immigration actually not “legally defensible”? And if so, can it be revoked? There are actually three ways to revoke the U.S. President’s executive orders. However, none of them are likely to happen, at least not while Trump is President.
- The U.S. President has the power to revoke, modify or supersede executive orders.
That’s what presidents usually do after they assume office – revoke the executive orders of their predecessors. But presidents rarely revoke or override their own executive orders. In fact, doing so early on would raise eyebrows, and there’s a risk that Americans would view a president who does so as indecisive, irrational or having no solid plan of action. In Trump’s case, revoking his own executive orders would give Americans one more reason to challenge his policy positions.
- Congress also has the power to revoke, modify or supersede executive orders if the U.S. President was acting under authority granted by Congress.
However, if Congress meddles in executive orders without the president’s approval, it would be met with a presidential veto, which can be overridden by a two-thirds vote in the House of Representatives and the Senate. Interestingly, only about 4% of all executive orders in U.S. history have been modified by Congress, according to a 2006 study cited by the Congressional Research Service.
On the contrary, it happens more frequently that Congress fortifies a president’s executive orders to provide funding or turn an order into a statutory framework.
- Courts also have some power against executive orders, as they can declare them illegal or unconstitutional.
But this happens even less frequently than the two above-mentioned ways. Interestingly, in 83% of all court cases that attempted to declare executive orders illegal or unconstitutional between 1945 and 1998, the courts ruled in favor of the President, according to Yale Law Journal.
Can Trump’s executive orders be revoked?
Even though revoking executive orders is no easy task, Trump’s controversial immigration order has already been altered by the U.S. Department of Homeland Security. On January 29, two days after Trump officially signed the order, the agency issued an order allowing permanent U.S. residents with valid visas coming from the countries included in the so-called Muslim ban list to enter the United States.
A day before, on January 28, a federal court in Brooklyn issued an emergency stay against the executive order after two lawyers representing Iraqi refugees had been detained at John F. Kennedy International Airport in New York. The ruling allowed those who landed in the U.S. and have valid visas or green cards to remain in the U.S.
The ruling inspired a string of similar emergency rulings from federal judges in other states, including Washington, Massachusetts and Virginia. Despite the common belief, executive orders do pass institutional checks before coming into effect, so just because they were issued by the U.S. President doesn’t mean they don’t have legal grounds.
Is Trump’s immigration order even legal?
It’s up for the courts to decide. Legal experts already have several problems with Trump’s recent executive orders. The Council on American-Islamic Relations (CAIR) and others argue that by banning exclusively those of the Muslim faith from entering the U.S., Trump is trying to establish a state religion, something that would be a violation of the First Amendment of the Constitution.
Trump’s opponents also argue that the immigration order violates the Fifth and Fourteenth Amendment guarantees of “due process of the law” by banning individuals with valid visas from entering the country.
Another legal problem with Trump’s immigration order is that he cites the 1952 version of the Immigration and Nationality Act, which grants the president the power to limit entry “of all aliens or any class of aliens” into the country when he thinks it’s “detrimental to the interests of the United States.” While such a line indeed exists in the 1952 immigration law, a 1965 revision of that law says individuals cannot be “discriminated against in the issuance of an immigrant visa” on the grounds of their “race, sex, nationality, place of birth or place of residence.”
So will Trump’s immigration order stay?
So in short, the courts will decide if Trump’s immigration order or his other executive orders are legal. Despite the backlash from federal judges, the court and other key players of the U.S. court system, the President does have immense powers when it comes to regulating immigration.
But if the court succeeds in proving that the President has violated the revised version of the 1965 version of the immigration law, which states that individuals cannot be “discriminated against in the issuance of an immigrant visa,” then Trump’s immigration order could be either revoked or modified.