What are executive orders and why is Trump using them?

The political firestorm that capped President Donald Trump’s first week in office turned on fundamental questions of executive power.

Protesters swarmed several of the nation’s largest airports this weekend, in an uproar over Mr Trump’s order to close US borders to refugees and would-be immigrants from seven Muslim nations. With the stroke of a pen, the president said he had protected Americans from terror. But critics accused him of endangering the nation’s identity as a refuge for those fleeing war and persecution.

What has President Trump done?

The new president wasted little time exerting his influence. The temporary ban is one of a flurry of executive orders, memoranda and proclamations. In staged signing ceremonies, Mr Trump ordered a temporary halt to refugee admissions, set new limits on government officials’ lobbying, revived plans for two controversial oil pipelines and directed “the immediate construction of a physical wall” on the border with Mexico. He also signed presidential memoranda calling for a new war plan against Isis and reorganising the National Security Council to include a role for his political counsellor, Steve Bannon, the former publisher of Breitbart, a nationalist web site.

What is the difference between an executive order and a presidential memorandum?

Executive orders direct federal agencies to exercise powers granted under law. The orders are numbered and must be published in the Federal Register, the government’s daily compendium of regulations and official actions. “Executive orders create an actual legal obligation that the president can impose on agencies and, in some case, private parties,” said Rakesh Kilaru, former associate White House counsel and special assistant to President Barack Obama. Presidential memoranda, in contrast, are explanatory documents that offer guidance or deal with the internal workings of the administration. Presidents also can issue ceremonial proclamations, such as Mr Trump’s labelling his inauguration a “National Day of Patriotic Devotion”.

What limits exist on the president’s power?

The president cannot issue executive orders that go beyond the law or that exceed his authority under Article II of the US Constitution. Congress can overrule orders with new legislation. “The limits of executive authority are really constitutional limits,” said Rajesh De, a former White House attorney now with Mayer Brown in Washington. In 1952, President Harry Truman seized the nation’s steel mills, fearing a possible steel strike during the Korean war. The steel companies sued and in a landmark ruling, the Supreme Court held that the president’s executive order was unconstitutional. Likewise, federal courts have temporarily stayed Mr Trump’s order, setting the stage for additional legal action this week. “The courts are going to determine whether this is too broad,” Senate Majority Leader Mitch McConnell said on Sunday.

Why has the president done this?

Mr Trump’s appeal to voters was that he was a man of action, unlike the career politicians he said were “all talk.” In the campaign, he promised to erase “every unconstitutional executive order, memorandum and order issued by President Obama”. While the president’s initial moves alarmed Democrats, his aides are confident that middle America approves. Sean Spicer, the White House press secretary, said on Sunday that Mr Trump was “someone who has gotten into office, hit the ground running, [and] had a flurry of activity to do exactly what he said he was going to do”.

How have other presidents used this power?

All presidents have issued executive orders, but their profligacy has varied. John Adams only issued one; Franklin D Roosevelt, on the other hand, fired off 3,721. Republicans assailed Mr Obama for his reliance on what he described as the power of “the pen” to circumvent congressional resistance, including on immigration. Mr Obama issued a pair of executive orders that allowed up to 5m undocumented immigrants to remain in the country, sparking a Supreme Court fight that he ultimately lost. But while Republicans accused Mr Obama of running an “imperial presidency”, his issuance of executive orders fell short of his predecessor, George W Bush, 276 vs 291.

How are such orders normally promulgated?

Normally, draft orders are co-ordinated through relevant federal agencies and the Office of Legal Counsel at the US Department of Justice. The aim is to avoid confusion among front-line government employees responsible for implementation. There were reports that both James Mattis, defence secretary and Mike Pompeo, Central Intelligence Agency director, had been surprised to learn from the press of a draft executive order reintroducing torture for terror suspects. Likewise, customs and border control officer struggled this weekend amid contradictory instructions. “This is a pretty big, substantive decision that appears, on the surface, to have been carried out rashly and without sufficient consideration,” said Mr De.