America’s new rule by order?



WHEN Donald Trump assumed the United States presidency, he wasted almost no time using his power to issue so-called executive orders to overturn some of the previous Obama administration’s policies and also to “fulfill” some of the political promises he made during his presidential campaign.

In the American political system, the use of the executive order as a means to implement policy may be said to inhabit a political gray area. In theory, it is an instruction issued by the President to enforce certain laws (or not do so), and has legal effect most of the time. But in the check-and-balance system held dear by the Americans, whereby political powers are divided among the legislative, executive and judicial branches of government, the enactment of law is primarily a legislative function, with the President who heads the executive branch supposed to indeed only enforce the law and not enact it. In practice, however, the President does enjoy a certain degree of “authority” to enact law (or not), and he usually does this by either issuing an executive order, or vetoing laws passed by Congress (though such veto is capable of being overruled by two-third majorities in Congress).

Indeed, the US Congress can explicitly pass new laws to overrule a President’s executive orders if they deem such orders to be improper, although it has seldom done so. And in the current Washington political environment whereby the White House and both houses of Congress are controlled by the Republicans, it would be exceedingly difficult for Congress to overturn Trump’s executive orders by legislative means. That leaves the judicial branch, if it chooses to, to take up the challenge, as the US federal courts are empowered to exercise judicial review as to the constitutionality of either laws passed by Congress or executive orders issued by the President.

And the US federal courts did as much over the past two weeks, especially in regard to challenges mounted against Trump’s executive order banning the entry into the United States of nationals from seven Middle Eastern and North African countries. Hundreds of international travelers were stranded, detained or otherwise deterred at various ports of entry around the US. Some, with the help of zealous American lawyers, decided to take it to the courts to challenge Trump’s executive order. At first, a federal district court threw out the legal challenge. But later another federal district court restrained the application of the executive order, and an appeals court affirmed the ruling. Trump was of course not pleased, to say the least, by the courts invalidating his policy choice of excluding some foreigners from the US. He went on attack mode, in both his speeches and his famous twitter messages, against the courts, breaking tradition with previous presidential self-restraint when it comes to criticism of the courts to preserve inter-branch amity in the US government.

And the Trump administration has now decided to appeal the decision banning his executive order all the way to the US Supreme Court. That apex court is usually composed of nine members – one chief justice and eight associate justices. After the death earlier last year of Justice Antonin Scalia, the Republican-controlled Senate declined to act on the confirmation of then President Obama’s replacement nominee. As a result, the current US Supreme Court is equally divided among four liberal and four conservative justices. If the aforementioned appeal comes before the Supreme Court in the near future, an equally divided court would mean that the ban by the lower appeals court will be let stand, essentially stopping Trump’s executive order from being implemented. As Trump’s own Supreme Court nominee is yet to even start his Senate confirmation hearings, it would take quite some time before he can take the bench. And even then, it still remains to be seen whether he would side with Trump, as he has also said that he was “disheartened” and “demoralized” by Trump’s criticisms of the judiciary in recent days.

And of course, challenges to Trump’s penchant for executive orders would only accrue over time. He must be well aware that the current congressional Republicans’ acquiescence to executive rule will not last forever, as Republican control of the Congress is not a given. He could perhaps more or less get his way for the next two years, but the political situation may change after the so-called mid-term congressional elections. Congressional control could well revert to the Democrats who view him with full-fledged enmity.

And even if his future executive orders were to be more or less upheld by the Supreme Court, Trump will of course not lose sight of the fact that the conservative justices, though appointed to essentially lifetime terms, will only live a finite number of years. If any of them were to pass away, and that were to coincide with a hostile Democratic Congress, then Trump’s “accomplishments” are likely to be overturned just as he has been doing with those of Obama’s. Despite observations since Trump’s election to the contrary, the American system of political checks and balances is still very much intact, and Trump, despite his abundant braggadocio, will have to navigate through the thickest of swamps in Washington, his vow to “drain” it notwithstanding.


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