By Lisa Soronen
President Barack Obama, like most of the presidents that recently preceded him, issued about 300 executive orders.
On the campaign trail, President Donald Trump promised to cancel Obama’s “unconstitutional” executive orders. Meanwhile, in 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 the president 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, William Henry Harrison—since George Washington.
Executive orders, while considered to have the force of law, can’t be used to overturn laws but 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 the U.S. 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 Obama’s executive order allowing certain undocumented immigrants to stay and work in the U.S. indefinitely was unconstitutional. The Supreme Court issued a 4-4 decision last summer that effectively affirmed a lower court ruling striking down the executive order on grounds other than it is constitutional.
Can Trump cancel Obama’s “unconstitutional” executive orders? Yes, and he can reverse Obama’s “constitutional” executive orders as well. For example, Trump has already reinstated the Mexico City Policy policy by executive order, which prohibits nongovernmental 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 government, Trump may reverse Obama executive orders on climate change, energy and immigration.
Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on the Supreme Court and other judicial matters.