Trump has actually signed fewer bills into law at this point than any new president for seven decades. But he has signed 124 executive orders (which don’t need congressional approval). Joe Biden signed 162 of these over his whole term.
Executive orders are a way of pushing through a presidential directive, usually based on existing statutory powers, without it going to a vote. So far, these have covered issues from energy policy to TikTok’s ownership.
Using this tactic, Trump has stretched his authority far more in just a few months than any recent president.
While the president may issue executive orders, he cannot create laws without the support of Congress. This has led, in part, to the launch of lawsuits regarding the statutory basis of some of these orders. Some are now going through the federal courts on constitutional and lawfulness grounds.
But the Supreme Court can also review and overturn executive orders that lack legal authority. These orders cannot contradict or supersede existing laws passed by Congress, or violate the US constitution.
A system of checks and balances that prevents US presidents from becoming too powerful is facilitated by the “separation of powers”, which is written into the US Constitution. The legislative (members of Congress), executive (president) and judiciary (the courts) are all separate bodies – in part to prevent an over-concentration of power in any one body or person.
Bills passed by presidents in first 85 days
The US Congress has a key supervisory role through its two chambers, the House of Representatives and the Senate, which work together to pass laws. But there are many reasons why this president may not be that concerned by these constitutional safeguards.
The Democratic opposition is in an exceptionally weak position to take on Trump. It is in the minority in both the Senate and House of Representatives, and is routinely outvoted by the Republicans.
And Trump is often dismissive of congressional oversight. House committees have previously launched multiple investigations into his conduct, business dealings, and whether he has financially benefited while serving as president. Congress also issued subpoenas for documents and testimonies in 2022, but Trump often resisted or delayed them.
Congress controls federal spending and can, in theory, deny funds for presidential initiatives. But it is currently full of Republicans who, so far, have not been willing to challenge the president.
Testing the legal limits
Trump’s approach seems to be one of testing the limits of the law. This was seen with the travel ban imposed on mostly Muslim countries in his first term, which the Supreme Court initially struck down as unconstitutional. The court later upheld a significantly revised version.
In terms of impeachment, Trump has already been there on two occasions. He was first impeached in 2019 after he allegedly pressured Ukraine’s leader, Volodymyr Zelensky, to investigate Joe Biden in the run-up to the 2020 election.
This claim of illegality on the part of Trump stemmed from it being illegal to ask foreign entities for help in winning a US election. The House of Representatives impeached him for abuse of power and obstruction of Congress, but the Senate ultimately acquitted him.
Trump was impeached again in 2021, after he was accused of inciting the January 6 Capitol riots. For the first time in US history, a president was impeached after leaving office – but he was again acquitted by the Senate.
Trump has suggested these impeachment attempts are evidence of him being persecuted for his efforts to “drain the swamp” (how he describes Washington’s political establishment). Overall, the president seems to favour testing the limits of executive policy-making, then making changes later if challenged.
Judges also have an important role to play in checking the work of the president. They can declare presidential actions unconstitutional. For example, in US v Nixon (1974), the Supreme Court ruled the president does not have executive-privilege immunity from court actions.
Some may think that as the president appoints top judges, this undermines their independence. However, once judges are appointed, they are bound to execute their duties fairly while upholding the rule of law. Importantly, they do not answer to the president for their decisions.
The US constitution also puts some limits on the office of the president. As part of their oath of office, presidents vow to uphold and defend the constitution and faithfully execute their responsibilities. In that sense, a US president must execute diligence in ensuring the law is faithfully followed. They cannot simply ignore laws they do not like.
And despite claims that Trump is prepared to seek a third term, the 22nd Amendment limits an individual to a maximum of two – although Trump has hinted at a plan to find a way around this.
As was seen with his previous administration, the voters can turn against sitting presidents and vote them out of power. Businesses and market pressures can also play a significant role, as was seen in the recent pauses in the president’s international tariff decision-making.
What needs to change?
A significant amount of change has been achieved via Trump’s executive orders in just 85 days. Meanwhile, judicial oversight and checks will take time to filter through the courts and, if necessary, be tested in the Supreme Court.
Nonetheless, the judiciary is starting to flex its muscles more. For example, a federal judge has said he would find administration officials in contempt unless they engaged with a legal process to secure the return of Maryland resident Kilmar Ábrego García, after he was illegally sent to an El Salvador prison. This is already being hailed as a test case for the rule of law.
It’s also noteworthy that recent polls of US citizens indicate 82% want the president to obey federal court orders.
One area where more explicit clarity in US law might be needed is over the scope of executive orders – to curtail some of the testing of their limits we are currently seeing. While Congress already has the power to legislate to reverse and override an executive order, as well as to refuse to provide the funding necessary to carry out policy measures contained within an order, it (so far) seems unprepared to execute this power.
In the next few months, the US public and politicians will be able to see the impact of these executive orders – and there will be a wealth of judicial rulings to add to the debate. Whether that will change how Trump operates is as yet unclear.
Stephen Clear, Lecturer in Constitutional and Administrative Law, and Public Procurement, Bangor University
This article is republished from The Conversation under a Creative Commons license. Read the original article.