Executive orders: What Donald Trump can do with the stroke of a pen

With it, the US president can set policy, manage agencies and even go to war without having to appeal to Congress - but critics say this contradicts the spirit of the US constitution.

US president Donald Trump signing an executive order to impose tighter vetting of travellers entering the United States, at the Pentagon in Washington, US on January 27, 2017. Carlos Barria/Reuters
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NEW YORK // Donald Trump has got off to a rapid start as US president, enacting a string of policies that formed key parts of his election platform.
He has made prolific use of executive orders to kick-start his term in office, as well as a broader range of executive actions - tools that allow him to set the tone of his presidency and direct federal agencies without having to wait for approval from Congress.
With the stroke of a pen, a president can set policy, manage agencies and even go to war without having to appeal to Congress.
That brings both strength and weakness, as Mr Trump found out on Saturday night when a judge in Brooklyn, New York, ordered a partial stay on his programme to keep out travellers from seven Muslim-majority nations.
Every president going back to George Washington has made use of executive orders, despite the fact that they are not mentioned directly in the constitution and are only vaguely defined.
Executive powers - which include executive memos and proclamations - are widely believed to based on a clause in section two of the constitution.
It is essentially an order from the president which directs how a federal agency is to use its resources.
Critics say this contradicts the spirit of the US constitution, which tries to balance different branches of government and prevent any one of them from acting unilaterally.
That means a president has to be careful not to overstep the mark.
Although executive orders carry the weight of law, they cannot be used to make law. Nor can they be used to appropriate money from the treasury.
That would encroach on powers reserved by Congress.
"We have the separation of powers system, but within the separation of powers different branches can act independently up to a point," said Robert Shapiro, a professor at Columbia University's department of political science.
In other words, presidents can only use them within limits defined by Congress and the constitution.
So when Mr Trump issued an executive order on building the wall with Mexico, he was asking the department of homeland security to direct its resources towards its construction as a priority. But he may still need congressional support to make it a reality.
"The question is, is the money they have enough to build the wall," Prof Shapiro said.
"The answer looks like 'no'. The figure of US$18 billion [Dh66bn] looks sufficiently high to require additional congressional legislation."
Even with such checks, the use of executive orders is fraught with political danger.
Barack Obama was subject to immense criticism as he relied on the instrument more and more towards the end of his presidency, trying to push through gun and immigration reform in the face of congressional opposition.
Even Mr Trump voiced his anger. "Why is @BarackObama constantly issuing executive orders that are major power grabs of authority?" he tweeted in 2012.
Now that he has taken over as president, the billionaire property developer is realising their merits.
By signing an executive order, Mr Trump was able start rolling back Obamacare on his first day in office by directing federal authorities not to pursue elements of the Affordable Care Act that impose a "fiscal burden" on businesses or individuals.
Repealing the whole act will be a lengthy process. But at a stroke, Mr Trump was able to direct government agencies in such a way that he could undermine some key tenets of the universal healthcare plan and send out a bold statement of intent.
"He promised to take action, he wants to fulfill his promises - at least symbolically," Prof Shapiro said. "The way for him to do it is to do what's easiest and go after the low-hanging fruit."
Mr Obama used similar steps to the set the tone for his administration. On his second full day as president he issued executive orders banning torture by the country's agents and to close the US detention facility at Guantanamo Bay. The Guantanamo order has been blocked by congressional opposition.
Mr Trump is reported to be considering new executive orders to reverse both those decisions.
And although Mr Obama was criticised for relying on executive orders to drive through his policies, his use of them was comparatively modest. He issued 275 - fewer than his two immediate predecessors, George W Bush who issued 291 and Bill Clinton who signed 364 executive orders.
Mr Obama came to rely on them only towards the end of his presidency, after Democrats lost control of Congress to Republicans intent on thwarting his ambitions.
"He was doing it on a lot of visible things - on immigration, on environmental regulation and so forth - that were clearly highly partisan," said Prof Shapiro.
The record is held by Franklin D Roosevelt, with 3,721, in part because he held office for 12 years and in part because he had to deal with both the Great Depression and the Second World War.
foreign.desk@thenational.ae