Executive Orders 101: What are they? And can they be challenged?

WASHINGTON — President Donald Trump’s executive order imposing travel restrictions on seven predominantly Muslim countries has drawn scrutiny and protests, and statements from the White House arguing that it’s accomplishing its goals.

So, what is an executive order?

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“An executive order is the most formal of the three executive actions a president can take under Article II of the Constitution,” said Doug Gansler, former attorney general of Maryland.

The second type is an executive memorandum: “For instance, President Obama directing new relations with Cuba,” Gansler said.

And, the third type of executive action is a proclamation, said Gansler, pointing to President Ronald Reagan’s proclamation of National Catfish Day, in 1987.

Gansler said the president is not allowed to create a new law with an executive order — making new laws is the job of Congress.

“An executive order is an official statement and legally binding mandate from the president, about how the federal agencies he oversees are to use their resources,” Gansler said.

Gansler said the tension surrounding executive orders revolves around whether the president is trying to change the law or working within existing law.

“Often the check and balance there is from the legislature — Congress — whether they are going to appropriate moneys to be consistent with that executive order,” Gansler said.

The other entity that can affect an executive order is the courts.

“The court will look at that executive order, and see if that executive order actually oversteps the authority of the president,” he said.

Gansler said presidential history is full of executive orders.

Franklin Roosevelt wrote some 3,700 orders, while James Madison, James Monroe and John Adams wrote just one each while they were president, Gansler said.

Most executive orders generate much less public scrutiny than the several Trump has signed in his first week in office.

Some orders “have been deemed by history to have been very good,” said Gansler, such as Lincoln’s Emancipation Proclamation or Eisenhower and Kennedy’s actions to integrate schools. “There are also bad examples, like the internment of Japanese-Americans by FDR,” he said.

Congressional opposition can take two forms, said Federal News Radio anchor Tom Temin.

“They can withhold money carrying out an executive order, which this Congress has reluctance doing, or they simply change the law, thereby invalidating the order, legally,” Temin said.

He added, “For instance, in this case they could simply write a law that says if you have a green card, you may be admitted to the United States, not withstanding any executive order.”

Temin said the first eight executive orders were issued by President George Washington.

President George W. Bush and Barack Obama each issued fewer than 300 orders, Temin said.

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