President-elect Donald Trump is expected to sign a long list of executive orders shortly after entering office for his second term.
At the top of Trump’s stated priorities is scaling back immigration, and many fear he could also scale back diversity, equity and inclusion efforts, as well as take action that would affect gender-affirming care and quality of life for transgender youth. During his first term, Trump signed 221 orders ranging from a travel ban on several majority-Muslim countries to efforts to reduce crime.
This use of executive power has limits: they can be revoked by the next president, challenged in court or checked by Congress. Here’s what to know about executive orders and the scope of their power.
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What are executive orders?
Executive orders are directives signed by the president that allow him to make policy outside of the usual congressional process. Article II of the Constitution gives presidents the authority to enforce laws governing the executive branch. The president can either ask a federal agency to draft an order, or the agency can propose an order to the White House.
Beyond official executive orders, presidential administrations also implement executive actions in the form of rules, regulations and memorandums. For example, recently the Biden administration issued a rule blocking medical debt from credit reports.
But there are limits to what the president can do with these orders. They have to be grounded in existing law and constitutional authority, said Cristina Rodríguez, professor of law at Yale Law School. There is a wide range of potential effectiveness. Some do not lead to a noticeable change for people’s daily lives, and other policies are significant, depending on the type of measure and how the administration implements it.
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How do presidents use executive orders?
During times of partisan gridlock in Congress, executive orders have become important tools for presidents. Axios recently reported that Trump has a list of 100 executive orders planned within the first few days of taking office. By comparison, Trump signed 33 in his first 100 days in 2017, while Biden signed 42 orders in the same period of 2021.
Rodríguez said that while the number of early executive orders taken by the president may receive a lot of attention, it’s important to consider what the measures will actually do.
“It’s really important to not fixate on the number of executive orders, and to look at what exactly is being accomplished and how much of it is changing underlying policy and having effects on real people,” she said. “There’s a lot of damage that can be done through these vehicles, but there are limits to it, and lots of room for Congress and litigants and others to push back.”
How are executive orders challenged?
Unlike federal laws passed by Congress, executive orders can be easily reversed by the next administration. During Biden’s first 100 days in office, he rolled back more than 60 of Trump’s executive orders that included Trump’s climate policies and rejoining the Paris climate agreement after Trump withdrew.
Congress can also act to check the president’s executive action either through passing legislation or withholding funding and resources needed to implement the policy. Executive action can be challenged in court as well. After just two weeks in office, Trump reportedly faced 50 lawsuits, much higher than previous administrations in the same time frame.
“The last time around, the Trump administration lost many cases in court because they didn’t go through the right steps in enacting their policies, so there is a cost to rushing things out,” Rodríguez said. “Perhaps they’ll be better prepared and less likely to make those same kinds of mistakes this time around. But regardless, I expect lawsuits to follow much of what comes out in the first 100 days.”
What kinds of orders did Trump sign during his first term, and what do people expect now?
In his first year in office Trump signed orders that included:
- calling on the Justice Department to increase penalties for crimes committed against law enforcement officers,
- creating a commission to study the federal government’s efforts to fight drug addiction,
- stripping federal money to so-called “sanctuary cities” and instructing the Department of Homeland Security to hire thousands of immigration officers.
Immigration continues to be a priority for Trump, who has promised mass deportations on “day 1” of his second term. But questions remain about what mechanisms he will use to take action. One option could be a national emergency declaration and mobilizing the military or the National Guard to ramp up deportations. He could reinvoke Title 42 public health restrictions, which he used at the onset of the coronavirus pandemic in 2020 to close the U.S.-Mexico border.
The biggest obstacle to mass removals is logistical, Rodríguez said, and she will be paying attention to how the administration navigates challenges like resources and personnel in order to make things happen.
Trump may also use executive orders or other forms of executive action that will shape how the government treats LGBTQ+ people, especially trans children. His campaign website has promised to instruct “every federal agency to cease all programs that promote the concept of sex and gender transition at any age.”
He also wants to direct the Department of Education to inform states and school districts that teachers and school officials could face “severe consequences” if they suggest that a child might be transgender. The administration will also interpret Title IX in a way that prohibits trans student athletes from playing on teams that align with their gender identity.
