The job of being the President of the United States of America is one of the most important and influential positions in the world, and it comes with many responsibilities. Some of these responsibilities are not clearly outlined and can be open to interpretation based on one’s judgment. One of the informal presidential powers that can seem to veer out of the range of the Executive branch is the executive order. Many people have recently been criticizing Presidents Obama and Trump for their perceived constitutional violations, each deemed unconstitutional for separate reasons. While President Obama did overstep his power slightly, President Trump has definitely exceeded his authority and violated the spirit of the Constitution and the law of the United States of America through one of his executive orders.
A foundation of our country, the principle of checks and balances is a fundamental quality of the distribution of power in American government. The checks and balances system allows for limited corruption in our government, making sure that no single branch can exceed its power. This principle works to control the government internally by giving each branch the power to override decisions and actions of the others. This intentional power distribution was a system thought of by our founding fathers, the framers of the Constitution. It was meant to keep any one branch from accumulating too much power and establishing a tyrannical governmental system. By allowing the branches to check one another’s actions, none of them can abuse their given constitutional powers or create new ones for themselves without full approval of all three sections. The Federalist Papers, essay number 51 specifically, written by James Madison and Alexander Hamilton, provide an argument for checks and balances and explain its status as a necessity in our governmental structure. The essay collection further describes that with checks and balances, the three branches will “control each other, at the same time that each will be controlled by itself.” (The Federalist Papers, 51). Madison and Hamilton go on to argue that the “necessary partition of power among several departments” is essential due to the way that our society is set up and because of the nature of man (The Federalist Papers, 51). Because we as people are not perfectly trustworthy or incorruptible, it is argued that without checks and balances, chaos would ensue and the government would turn to dishonesty incredibly quickly. Hamilton and Madison make this point through using a hypothetical scenario in which angels and men are together. They state that “if men were angels, no government would be necessary.”, yet, “If angels were to govern men, neither external nor internal controls on government would be necessary.” (The Federalist Papers, 51). This point implies that the issue in creating an effective government does not lie in the government itself, but in the basic nature and qualities of mankind. If men were honest and incorruptible beings, then a government would not be needed at all. Checks and balances provide a way around this issue. By splitting power among three branches, we “divide and arrange the several offices in such a manner that each may be a check on the other”, preventing corruption and malicious intentions from ever impacting the decisions of the government (The Federalist Papers, 51).
Expressed or implied, Congress is granted different powers under our Constitution. Whether directly stated in the Constitution, or assumed due to the Necessary and Proper Clause, all of Congress’ powers are necessary for an organized and effective government (The Constitution, Article 1, Section 8). The formal powers that apply directly to the debate over abuses of authority in the executive branch include the power of Congress in creating policies for the government, controlling certain aspects of immigration, and making rules for the nation’s territory or property (The Constitution of the United States). Congress is able to “make Rules for the Government and Regulation of the land” in order to best keep those in the U.S. safe (The Constitution of the United States, Article 1, Section 8). They are also allowed to control the “migration or importation” of anyone that the States deems fit to immigrate into the U.S. (Article 1, Section 9). In addition to these, Congress can “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States” (Article 4, Section 3). Some of Congress’ powers are not specifically stated, causing some to wonder whether Congress has full power over limiting and regulating immigration.
Additionally, the president is allowed numerous powers in the Constitution; the oath that the president takes to uphold the law and execute it faithfully, and the ability to recommend issues that Congress should bring into focus come to mind (Article 2, Sections 1 and 3). The president of the United States vows to “faithfully execute” their office, and promises to uphold the laws and values in the Constitution (Article 2, Section 1). This means that they promise to the citizens of America that they will always follow the laws of our nation and do their best to enforce them. In addition to the vow of sincerity, the president can recommend an agenda to Congress, allowing them to influence the priorities of Congress with their State of the Union Address by communicating what they believe to be important to the nation at the time (Article 2, Section 3). One implied presidential power that is relevant to Obama and Trump’s executive orders is the power to issue executive orders. Presidents may use executive orders to help run the government. Executive orders are meant to allow presidents to influence how Congress’ laws are implemented, but they are occasionally abused. In fact, many presidents have used executive orders to create policies instead of to affect laws already in place (Edwards et al. 408).
While the checks and balances system may keep the powers of the sectors of government from becoming too strong, informal powers such as executive orders and executive agreements can allow the branches to circumvent each other in certain situations. Executive actions like orders and agreements can be initiated by the president. Executive orders were initially meant to “carry the force of law” and are supposed to be used in order to “implement statutes, treaties, and provisions of the Constitution.” (Edwards et al. 408). However, more often than not in recent years, presidents have taken advantage of this loose definition and expanded the power to allow decisions and policy-making in order to further their agendas that are not being met by Congress through the traditional law-making process. For example, “Harry Truman desegregated the military, John F. Kennedy created the Peace Corps, Lyndon Johnson began affirmative action, Richard Nixon created the Environmental Protection Agency, Ronald Reagan centralized powers of regulatory review in the Office of Management and Budget, and George W. Bush established military tribunals for terrorists”, all using the power of the executive order (Edwards et al. 408). Each of these presidents did not go through Congress to pass these orders, which is often seen as a sneaky way of advancing their own agenda. Executive agreements are similar. They are used by presidents to negotiate with other countries without having to go through the Senate for approval. Executive agreements also only last under the president who forms them, so they are not as long lasting as treaties. The majority of executive agreements are quite routine and noncontroversial, although some, such as the signing of the Paris Peace Accords and the SALT I agreement under Nixon held extreme significance (Edwards et al. 423). The power of executive agreements is an implied power under the role of the president as Commander in Chief (CINC) (The Constitution of the United States, Article 2, Section 2). As CINC, presidents must be in charge of conflict with other countries, and the power of the executive agreement allows for them to negotiate peace and to effectively carry out their role. While similar to executive orders in spirit, the fact that executive agreements are not long-lasting makes them seem much less threatening, and they are not as powerful when it comes to benefiting the president’s political agenda.
When it comes down to it, there is a fine line between what is constitutional and unconstitutional, and which side an executive order falls on can be determined by something as small and tricky as wording or intentions. In November of 2014, President Obama issued an executive order that had to do with immigration policy. In this order, he offered “temporary legal status to millions of illegal immigrants, along with an indefinite reprieve from deportation”, causing a surge of opinions that were either strongly for or against this policy (Ehrenfreund). All things considered, Obama’s executive order is not illegal or remotely unconstitutional. Obama’s order was completely out of necessity. He had attempted to reform immigration through Congress, but he grew frustrated by the gridlock and took action to fix what everyone agreed to be a broken system. Legally, Obama’s case can be argued based on the principle of prosecutorial discretion (Ehrenfreund). Enforcers of the law will choose where their efforts need to be focused, letting go of smaller violations so that they are able to punish those who are in greater defiance of the law. In this circumstance, Obama chose to do just this: focus his efforts on bigger things than harshly enforcing deportation policies. Obama and his administration also made the points that they were going along with existing immigration law, and that they were simply expanding upon its boundaries with this order (Ehrenfreund). This argument certainly has validity, as Obama has not explicitly created any new policies with this order, only expanded on things such as Deferred Action for Childhood Arrivals (DACA) and adding resources to border security (Ehrenfreund). It is thought by many that Obama is only adding to the existing policies by making the system “more rational, more efficient, and more humane” (Fitz). In fact, the only way that Obama could legally have been stopped from acting upon his executive order would have been for somebody to sue him. While the House Republicans had contemplated doing just that solely because of their negative attitudes towards his decision, they had a tough time figuring out any way that they could have standing in a court. As none of the Congressmen had been harmed or negatively affected by the action, they had no grounds to sue Obama, and did not end up pursuing the legal action any further (Ehrenfreund). It can also be argued that the policy was no different than ones made by presidents in the past that had no controversy surrounding them at all. Similar policies have been enacted “39 times… by 11 presidents over 60 years” without any conflicts or questions (Fitz).
On the other hand, President Trump’s executive order restricting travel, called the “Muslim Ban” several times by Trump himself, is completely unconstitutional. Trump’s ban is not only discriminatory based on country of origin, but also on religious affiliation. First of all, Trump has made his argument for the order based on security and terrorist threats to the nation. However, none of the listed countries in the travel ban (Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen) have attacked the United States or posed any immediate terrorism threats. The one thing that all of these countries do have in common is that they have a large Muslim population. Additionally, Trump states in his executive order that the U.S. would continue to provide safety to refugees. This seems fine and lawful, until he states that the United States would “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” (NPR). This phrase has been worded so that it is seemingly constitutional and even benevolent. But, if you analyze it, you will see that every country mentioned in Trump’s ban is of Muslim majority, so any refugees that would be allowed in would not be Muslim. This is highly unconstitutional, and even implies that Trump would favor Christians by offering them protection and refuge in America. Under the Fourteenth Amendment of the Constitution, the government cannot “deny to any person within its jurisdiction the equal protection of the laws”, which means that discrimination of any kind is unconstitutional (The Constitution of the United States, Amendment XIV, Section 1). He even later attempted to dodge accusations of the ban being on Muslims by adding Chad, Venezuela, and North Korea to the ban (Dalmia). By manipulating his language to make his order technically constitutional, Trump has only violated the law more by acting out of its spirit in denying all people equal protection. While it is argued that Obama only expanded upon existing policies through his executive order, the same cannot be argued concerning Trump, because there has never been a law passed discriminating against those who choose to follow the Muslim religion, since that is very clearly unconstitutional.
Those who disagree with these analyses of the two presidents and their executive actions will say many things that are easily refuted. Trump’s supporters will say “This is not a Muslim ban” just as their president has argued after he attempted to backpedal after admitting to the exact intentions of the order (Brettschneider). They will argue that the Muslim religion is never explicitly mentioned anywhere in the document. Although, by that logic, President Trump does not have the power to issue the order at all. If we ignored everything that was implied by the Constitution, then Trump would be stripped of his power to take executive action anyway. If we interpret the Constitution in such a way and allow for informal powers to be used by the government, then why would we ignore what is implied in Trump’s order? His intent is clear: He wants to keep Muslim people from entering the United States. These individuals may also argue that the ban is not to keep any specific group of people out or to discriminate against them, but that it is meant to keep the nation safe from terrorism (Yang et al). These arguments refuse to consider that the U.S. has not experienced terrorism from any of the banned countries in the past 16 years, and that a restriction like this may have been sanctioned in 2001, but it is completely out of the blue and unnecessary in 2017. It can be argued that some of the individuals from these countries would be prohibited from entry due to affiliations with terrorist organizations or malicious intentions towards the country and citizens of the United States (U.S. Code 1182, Section f). However, the majority of the people in these nations who desire entry to America are attempting to escape these terrorist organizations, and are not part of them (Dalmia). Critics of Obama’s action argue that he violated the expressed principle of checks and balances stated in the Constitution. Obama did not overstep his authority by issuing this order because he was adding onto existing policy, which is what executive orders were originally for. In addition to this, President Obama attempted to make these changes in a noncontroversial way first. Even though he attempted to bring the issues to the House, they “never considered it… which Obama says is part of the justification for his acting unilaterally.” (Ehrenfreund). Even though his acts were justified and legal, Obama attempted to carry out these policy additions in a way that would cause much less anger and arguments. He used his own implied power of the executive order to make a few changes and additions to implement policies already created by Congress.
Given all of these points, Presidents Obama and Trump’s controversial actions have clearly been based on very different intentions. Obama’s actions have not violated any principles or laws of the Constitution, specifically the concept of checks and balances. Trump’s order to ban Muslims has done exactly the opposite, violating the spirit of the Constitution, and exceeding his authority by creating entirely new policies concerning travel into the United States. Obama’s order simply adds to existing legislation, while Trump’s order furthers his discriminatory agenda and creates a new piece of legislation without any congressional involvement. However, both of these presidents have made controversial decisions that have surely stirred the pot in American politics, and they have both made change in policy when Congress could not. Two very different leaders have faced the same issue, which shows the paradox of modern American government: We want change, we want balance, and we cannot have both.