Less than three weeks since Inauguration Day, the number of executive orders and actions taken by President Donald Trump has both critics and supporters debating: How much authority does a president and the executive branch of government rightfully have to make direct changes without involving Congress?
In the 19 days since Trump raised his right hand and took the oath of office, he has signed 57 executive orders, ranging from steps to restrict DEI and gender ideology in government and schools, to the declassification of 1960s assassination files and plans for the celebration of America’s 250th birthday next July. He has also taken steps to restrict illegal immigration and signed orders for tariffs on Mexico, Canada and China, before later pulling back on amounts and start dates as he negotiates with country leaders.
The fast-moving news brings hope to some and fear to others, especially as it relates to potential job cuts on the federal level. How does the pace and scope of executive action compare with past presidencies?
An executive order is generally defined in the U.S. as “an official instruction given by the president or by a state’s governor”— hearkening at the federal level to the opening sentence of the Constitution’s Article 2, “The executive Power shall be vested in a President of the United States of America.” Some point to a tighter definition focusing on an order from the president “to the executive branch” and which attempts “to shape the way that the executive branch acts.”
Fear over presidential power is not new and has been part of American governance since the country’s founding, historian Andrew Rudalevige tells the Deseret News — referencing Patrick Henry and anti-federalists who opposed the new U.S. Constitution due to concern the presidency was too strong, even called by Virginia constitutional delegate Edmund Randolph at one point a “fetus monarchy,” sure to grow up to be a king.
After New York Gov. George Clinton published fears of the “president as emperor,” the scholar notes that Alexander Hamilton was prompted to write a lengthy response (Federalist 69), “basically saying, look, the President is not a king.” Although agreeing presidential power needs to be checked, Hamilton tried to reassure Americans that the Constitution would ensure the presidency is well checked.
The Deseret News spoke with experts in Utah and across the country who have studied U.S. government for decades — helping pinpoint several key questions that can deepen public understanding of this more muscular presidential power on display.
1. How do recent executive orders compare with earlier presidencies?
As of publication, Trump’s 57 executive orders are just over the per year average of his first term (55). Former President Joe Biden had more than 60 executive actions in his first 100 days — averaging 40 per year in his term of office.
“Trump’s uniqueness is in the volume of his actions,” writes University of Utah political scientist James M. Curry in an email. “As before, he’s happy to challenge norms and test his boundaries,” he says. “It’s too soon to determine if he is among the small set of presidents who have been able to significantly reshape things.”
Julia Azari, a professor of political science at Marquette University in Wisconsin, says in a recent 1A podcast, “over the course of the twenty first century, we’ve seen an evolution toward using more executive action in more substantive ways and often earlier on.”
She and her students have been looking at Trump’s recent executive orders compared with those of former President George W. Bush, who was also a “very strong proponent of executive power.” How do they differ?
“Trump has these long preambles that are sort of him saying, ‘I’m going to tell you why this is the right thing to do’” — this, despite the orders themselves being “much vaguer about what they actually do,” she says in an interview with the Deseret News.
By comparison, Bush executive orders tended to be “very legal and technocratic. They’re really not rhetorical documents. They’re managerial documents. They’re like your boss sending you a memo about you know, ‘here’s how to carry out this thing.‘”
Prior executive orders were typically not public-facing documents like a proclamation, Azari says. Nor were they photo-ops presidents would draw attention to, which previously was reserved for announcements of legislative goals — “I’m going to do this thing to achieve the policy ends that I want to achieve” — or signing ceremonies to celebrate laws passed.
That’s the point at which presidents typically would issue some executive orders related to the new law, Azari says, conveying, “Here’s how we’re going to carry this out.”
It wasn’t President Trump who pioneered more proactive executive orders, she adds. The pattern was advanced by former presidents struggling to advance legislation in Congress.
2. Has congressional gridlock contributed to the expansion of executive orders?
Trump “didn’t invent this,” Azari says. “I think the start of this is actually (former President Barack) Obama and DACA.”
When immigration reform failed, the former president announced early in his tenure, “I’m going to be working with Congress where I can ... but I’m also going to act on my own if Congress is deadlocked.”
“I’ve got a pen to take executive actions where Congress won’t and I’ve got a telephone to rally folks around the country on this mission.”
“We are not just going to be waiting for legislation,” Obama also said at his first cabinet meeting. “I’ve got a pen and I’ve got a phone.” (Obama ultimately signed on average 35 executive orders per year.)
By comparison, Azari notes that when past presidents came into office, the focus was typically: “I’m going to convene a task force to help me pursue my legislative agenda. … I’m going to appoint some people to some White House positions to work with Congress.“
“And so the goal is passing legislation.” When that became difficult, first under George W. Bush, but then more pronounced with Obama’s “deep tension between him and congressional Republicans,” executive orders began to receive more focus.
“I do think that the historical development of executive orders has a lot to do with congressional gridlock and with the polarization of the parties,” says Rudalevige, the historian from Bowdoin College in Maine, on the 1A podcast. That generates a natural “motive to act unilaterally because Congress isn’t doing very much, and they want to be able to claim that they are leaders, right?”
“They’re taking action, even if Congress won’t.”
“We have a president who is acting very quickly because he can,” points out Matthew J. Burbank, professor of political science at the University of Utah, alongside “two other branches that for very different reasons, don’t act very quickly.”
“So what that does is it creates a bit of a power vacuum where the president is very willing to step in and say, ‘here’s what we’re going to do.‘”
3. Why else has executive power grown over time?
“Congress has passed a lot of laws over time, and they have delegated to the president a lot of authority through these laws,” Rudalevige says, mentioning one statute dating back to 1798 that Trump recently referenced. “Those things kind of lie around, as one Supreme Court justice put it in the ‘50s, like a loaded weapon.”
“But all presidents have, in the absence of being able to pass new laws in a gridlocked Congress, tried to figure out some new meaning in old laws,” the historian says.
“In general, the language pertaining to presidential power is drafted in vague and open ended terms,” adds Michael Lyons, emeritus political scientist at Utah State.
“Executive orders are not well defined constitutionally or legally and Trump is not the first president to take a vague mandate from Congress and claim that it empowers him to do something that is probably outside of Congress’s real intentions,” he says.
For example, before Trump’s declarations of national emergencies to justify new tariffs and deportations, Lyons notes that Biden justified suspension of student loan repayments by citing the pandemic as a national emergency (this power to decide emergencies having been previously granted by Congress).
“We live under something like 50 national emergencies at the moment,” Rudalevige says, pointing out how they’ve aggregated over time since the 1970s as a method that “unlocked (statutory) powers that presidents like to use.”
Lyons concedes that legislative intentions are not so easy to understand “because you’ve got 535 members there, and Congress rarely speaks with one voice on anything, so there’s a lot of ambiguity associated with this.”
But overall, “there’s a substantial history here of presidents seizing on upon some platform of authority granted by the Congress and taking it in directions that Congress hadn’t necessarily anticipated.”
Rather than treating executive orders “like a kind of decree” nationally, Azari clarifies that executive orders are “not to be issued to states or localities. They can’t be issued to Congress. They’re issued to the executive branch.”
“The president does have authority ... to direct the internal workings of the executive branch,” says Cristina Rodriguez, professor from the Yale School of Law, on the 1A podcast, before pointing out that legitimate executive orders should be grounded in existing law wherein a president claims “a statutory authority to direct an agency or to take a particular action that’s been delegated to the president” by Congress or the Constitution.
4. Are checks and balances operating as intended?
In his 2021 book, “Executive Order: Bureaucratic Management and the Limits of Presidential Power‚” Rudalevige emphasized that the process created by the framers “constrains the chief executive’s ability to act unilaterally,” which encourages the entire executive branch to formulate executive orders, rather than the “president alone.”
Twenty years prior, however, he also raised a warning voice in his book, “The New Imperial Presidency,” arguing that “the congressional framework meant to advise and constrain presidential conduct … has slowly eroded.”
“I’m not convinced that the checks and balances have eroded,” political scientist Curry tells the Deseret News. Clearly, he says, President Trump is attempting to “use the presidency in an energetic way, as Hamilton would have put it.” But “setting aside for the moment that a lot of the actions are more symbolic than substantive, we are also seeing a lot of push back. ... A lot of the more aggressive actions have already been challenged in court, and some will be in the future.”
“In these ways checks and balances are alive and well,” he says — something Curry also observes in “actions taken by the states to oppose, or challenge in court, actions of the president or the federal government. We are seeing a lot of that too.”
5. Can the president change things this quickly with an executive order?
“Presidents can’t just issue these orders arbitrarily,” emphasizes Lyons, ”and at least have them stick legally, there has to be some prior grant of authority by the Congress.“
“He’s made certain declarations, but rhetoric itself doesn’t change regulation,” Rudalevige tells the Deseret News.
“So the president says I’m getting rid of Lyndon Johnson’s order about affirmative action in government contracting, for example,” Rudalevige says. “Well, OK, so you got rid of the order, but you haven’t gotten rid of all the regulations 60 years of sort of regulatory undergrowth that’s been built up around that order.
“So to change a regulation, you actually have to go through the process of revising or revoking a regulation, and that has its own process. It’s not simply a matter of saying, I don’t like the regulation. You have to make the case for why changing the regulation is rational under the law, and that can be a hard process.”
The scholar references a memorandum Trump sent to different departments and agencies of the federal government on day one to take action to bring down the cost of living. “To the extent they can even do that, is going to take some time,” Rudalevige says.
6. How many of the executive orders will stand up in court?
There are three executive orders, in particular, that are widely held as likely to face serious legal challenges.
1. Enforcing TikTok ban order. After Congress passed a ban, Rudalevige notes “the president basically said ... ‘this law was passed, but I would tell the attorney general not to enforce it, and tell the attorney general, in fact, to reassure the people who could be criminally charged under this law not to worry about it.’”
“So there’s a case where it’s pretty clear that you’re not faithfully executing the law,” he says. It’s worth noting, however, there was support on both sides of the aisle to pause the law in order to prevent those who make their living from social media from going dark.
2. Funding previously approved by Congress. The Supreme Court and existing law, according to Rudalevige, states that “if Congress appropriates money, it has to be spent.”
Whatever frustrations some may have with USAID and its $50 billion budget, he says “that agency was created in statutes. It was funded again by a different statute, by the Congressional budget year to year.” Thus, “to simply make it disappear is very clearly beyond the capacity of the president.”
“The president can’t just add his own and new conditions onto federal spending,” argues the Yale professor Rodriguez — calling this an “invasion of the power of the purse” vested in Congress by the framers.
“For the president to pause or stop spending money that has already been appropriated by Congress would effectively render Congress an advisory body.”
Yet there is a real appetite among many Americans to cut government spending. How far the president can go in paring back the federal budget could come to the courts.
3. Native born citizenship. This question hinges on a phrase in the 14th Amendment, “under the jurisdiction thereof,” that some conservative legal thinkers have put a lot of weight on, Rudalevige says, as part of arguing “that those in the country illegally are ‘not under the jurisdiction thereof’ therefore their kids would not count anyway.”
According to this scholar, “this is the president reading the 14th Amendment in a way that was pretty clearly not intended by Congress when they adopted the 14th Amendment and sent it out for ratification.” He argues, “debates are pretty clear on that, and it’s not the way it’s been interpreted, including by the Supreme Court.”
But this public debate is not settled. Utah’s senior senator, Mike Lee, weighed in on the issue in a series of social posts, arguing that Congress could reinterpret the 14th Amendment.
“Congress could pass a law defining what it means to be born in the United States ‘and subject to the jurisdiction thereof,’ excluding prospectively from birthright citizenship individuals born in the U.S. to illegal aliens,” Lee wrote.
As the Deseret News previously reported, Lee referenced a 1993 bill that never received a vote, the “Immigration Stabilization Act," which would have limited birthright citizenship only to those born to citizens or lawful permanent residents.
“Those who suggest Congress is somehow powerless to limit birthright citizenship ignore important constitutional text giving Congress power to define who among those ‘born in the United States’ is born ‘subject to the jurisdiction thereof,’” Lee wrote.
Whether such a step would be positive or negative for the country is fiercely debated. By way of comparison, Rudalevige proposed imagining the public reaction to former President Biden looking at the Second Amendment and saying, “Well, you know, the words that really matter in the Second Amendment are a ‘well regulated militia’” — and therefore, “anybody who is not in a well regulated militia can’t have a gun.”
7. If the White House knows some orders will be overturned, why do them at all?
“It’s not easy to change Washington, especially when things require congressional approval,” Lyon says. “Any major change to the federal government or national policy has to happen through acts of Congress,” Curry adds. “Trump cannot make a significant dent on his own, and everyone knows it.”
When “you’re trying to push through pretty big changes on very narrow margins in both chambers of Congress,” Rudalevige describes strategic advantages in proactively moving many orders forward — a way to “sort of dare other actors in government to challenge that.”
Whether or not these executive orders have lasting impacts remains to be seen. Regardless, experts agree there are potential political benefits for the new administration being seen as at least trying.
“We’re at the first part of act one, and we don’t have a clue as to how act one will even finish, much less how act two and act three will play out,” says Lyons, adding that he’s learned “never to try to predict Donald Trump.”