Photo: Jim Watson/AFP/Getty Images
Donald Trump’s January 6 pardon spree is, without question, a captivating shiny object. Love what he’s done or hate it (and even some Republicans acknowledge the lunacy), it’s impossible not to gawk: clemency for, essentially, everyone — from seditious conspirators to 170-plus defendants who attacked cops with weapons to nonviolent insurrection-curious Capitol-meanderers. Over 1,000 convictions were wiped from the books, all pending prosecutions were dismissed, and about 400 offenders were immediately released from prison. Despite prior insinuations from Trump and others about moderation, no lines were drawn. They all skated.
But the pardon bonanza, for all its shock value and undeniable historical import, obscured a series of momentous policy changes initiated through an avalanche of new Trump executive orders. They’ll determine everything from immigration enforcement to domestic energy production to whatever name we call the body of water between Florida and Texas to the security clearance of one guy. (John Bolton. Seriously.)
When we think of governmental exercises of power, we naturally tend to start with good old-fashioned laws — statutes passed by Congress and signed by the president, just like they taught us in the cartoons. Of course we’ve also got court rulings, from the Supreme Court on down the line. And then there’s the executive order, often overlooked — I sure didn’t learn about them in high-school civics — but surprisingly potent.
It’s tough for any president to resist the lure of the executive order. Just type up an item on the wish list, swipe a pen across the signature line, and presto: democracy in action. Trump’s unilateral, blunt-force style of governing (and living, generally) mesh perfectly with the executive order, and they’ve proven to be natural bedfellows. During his first term, Trump issued 220 executive orders — the most of the past ten presidential terms. (Every other president has landed between 118 and 200.) And now he’s off to a hot start, issuing an all-time Inauguration Day record 26 executive orders. He’s a good bet to surpass his own benchmark and establish a new high this time around.
Of course, executive orders have their limits. As the name suggests, they apply only within the federal executive branch. They can’t bind Congress or the courts or the states — though the president can influence state policy by placing conditions on federal funding, in some circumstances. Even within the executive branch, presidential orders can’t violate statutes passed by Congress or the U.S. Constitution.
Executive orders have astonishing range. At one extreme, they can create sweeping, world-changing policy initiatives. Barack Obama established the Deferred Action for Childhood Arrivals policy by executive order in 2012. Since then, the “Dreamers” program has protected hundreds of thousands of undocumented children from deportation, and has withstood a series of legal challenges that still carry on today. On the other side of history, Franklin Delano Roosevelt in 1942 issued an executive order that led to the forced relocation of over 120,000 Japanese Americans to internment camps during World War II.
Presidents also use executive orders for ceremonial (though not entirely inconsequential) matters. Obama changed the name of Mount McKinley to Denali in 2015; Trump changed it back this week. (Trump has studied history and determined that President William McKinley “made our country very rich through tariffs and talent.”) And, apparently upset at the notion of flags flying at half-staff to honor Jimmy Carter during his inauguration, Trump ensured that no future president should have to endure such hardship and instructed that the flag must be flown at full-staff during inauguration, to heck with whoever may have died recently. (Though I suspect that Carter, a patriot to his core, would actually agree and would want us at full force on the momentous occasion of a presidential swearing-in.)
Despite these relatively trifling matters, many of Trump’s new executive orders promise seismic substantive changes on immigration, national security, the federal workforce, and climate change. And lest we forget: He saved TikTok, for now.
The fate of these newly unveiled policies will be determined in the courts, and the litigation started immediately. We’ve already seen lawsuits challenging Trump’s orders that undercut birthright citizenship (the doctrine that a child born in the United States to noncitizen parents automatically becomes a citizen); that establish the “Department of Government Efficiency”; and that strip employment protections from some federal workers. Expect further legal challenges to all but the most symbolic of the new Trump orders.
While it takes months (or even years) to fully litigate an executive order, we’ll soon see a series of intermediate rulings from courts about whether the new measures can take effect immediately, or whether they must be put on hold. The challenger must make two core showings to obtain a temporary injunction: (1) that the policy will cause some harm that can’t be fixed later, and (2) that the lawsuit challenging the action is ultimately likely to succeed. These forthcoming temporary court rulings will be more than procedural formalities; they often presage the ultimate fate of policies enacted through executive orders.
Take Trump’s aforementioned birthright citizenship executive order, for example. This one seems doomed on the merits. It violates both the explicit language of the Constitution (the 14th Amendment provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States”) and an on-point Supreme Court decision (from 1898 — but hey, it’s still good). I doubt even the conservative Supreme Court ultimately sides with Trump on this one. Indeed, on Thursday a federal district court judge temporarily blocked Trump’s measure. But if the president’s legal team can somehow convince an appeals court to let the executive order go into effect, it’ll wreak havoc while the larger case on the merits plays out.
This will be the next frontier in the Trump legal battles. For the first time in more than eight years, there is no pending criminal investigation, congressional inquiry, impeachment proceeding, grand-jury matter, indictment, or trial of Donald John Trump, the individual. Instead, his presidential policies are at issue, and the outcomes will change much about American life and governmental power.
History will remember the January 6 pardons. But that history is already made. The executive orders aren’t as sensational as the release of hundreds of convicted Capitol rioters. But the coming legal fights over those orders will be even more consequential.
This article will also appear in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at cafe.com.
