A formal implied power.
Many of these executive orders can be traced directly to an Act of Congress, with the president issuing instructions to ensure these laws are carried out. In theory this is a legitimate tool under the Constitution and many executive orders are uncontroversial.
However, there are limitations on these powers.
· The president has to show that their use is directing the executive branch in a manner that does not fall under the legislative role of Congress. This can and has been reviewed by the courts. While the vast majority of executive orders remain intact, some are blocked, as the 2016 case study below shows.
· There can be strong public and congressional outcry — and presidents have to be mindful of their popularity if they are to maintain power. Excessive use of executive orders may actually undermine a president's ability to make deals with Congress.
Obama created two schemes using executive orders:
· Deferred Action for Childhood Arrivals (DACA), which let undocumented immigrants to the United States who entered the country before their 16th birthday be exempt from deportation.
· Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which gave a right-to-remain to people who entered the US before 2010 and have children who are either American citizens or lawful permanent residents.
The scope of these executive orders was broad, and Congress had already rejected Obama's requests for comprehensive immigration reform in both his first and second term. As such theseorders undermined traditional constitutional relations and allowed the president to achieve his policy goals while ignoring Congress.
Obama's attempted extension of DACA was blocked by the courts in 2016 with a 4-4 divided court effectively upholding the block imposed by a lower court ruling.
In 2017, President Trump issued an executive order banning immigration from seven countries, arguing that this would limit terrorist threats to the US. There have been many conflicts within the executive branch over this issue. President Trump dismissed a member of Cabinet, the US Attorney General Sally Yates, after she challenged his immigration ban. Yates, appointed by Barack Obama, instructed Justice Department lawyers not to enforce the president's executive order. Trump apparently sidelined the Defense and Homeland Security Departments when making a decision to create an executive order, with members of EXOP secretly consulting staffers on the House Judiciary committee to help create it. The order was signed by Trump with Secretary of Defense James Mattis, standing at Trump's shoulder at the Pentagon, even though the Defense Department was not consulted on its contents. The executive order was halted by a federal judge after it was challenged over concerns regarding religious discrimination as well as green-card holders who already have a legal right to enter the US.
2019 Trump used Executive Orders to invoke emergency powers by declaring a national emergency on the Mexican boarder- this will allow him to spend money which Congress had denied him, to build a wall.