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President Trump’s Executive Orders: Recap of Sunday’s Law Call

Sunday’s Law Call was one of the best we’ve had; so good that I wanted to recap a few of the important points. I also wanted to add some insight I received from our guest before the show, interesting stuff we didn’t get a chance to explain during the show. Professor Mark Seidenfeld joined me to discuss President Trump’s executive orders and the limitations on the President’s power.

First, we learned that the President’s power comes from three primary sources, (1) the U.S. Constitution, (2) Congress via statute, and (3) the inherent power of the Presidency to faithfully execute of the laws of the United States. The President’s role is to execute the laws created by Congress and to wield the power given to him by the Constitution. Before the show, Professor Seidenfeld explained to me that the Constitution, for example, gives power to the President as the Commander in Chief of the military. Although he doesn’t have the power to declare war, he has the power to “make war,” if he believes it to be in defense of the United States. There is a subtle difference between declaring war (as an aggressive act to overtake governments, for instance) and making war as a means of defending our country from outside threats. As another example of the President’s power, the power given to the President to control immigration was not given to him through the Constitution, but was written into a statute by Congress.

We learned from Professor Seidenfeld that one of the most famous executive orders ever given was President Lincoln’s “Emancipation Proclamation,” which freed the slaves. Although we didn’t discuss it during the show, the Emancipation Proclamation was issued as a war measure under the President’s Constitutional authority as Commander in Chief. The professor explained to me that the President’s power as Commander in Chief is not absolute, because his decisions still cannot violate the Constitution of the United States. For instance, if the President issued an executive order stating that only soldiers of a certain race or creed would fight in a war, such a decision would not be upheld due to Constitutional protection of equal rights.

The question arose during the show regarding why and under what authority the judiciary has the power to stop the President’s travel ban. Professor Seidenfeld explained that although the President has powers given to him by the Constitution or Congress, his executive orders are all subject to review and interpretation by the judiciary. Essentially, the judiciary reviews the orders to determine (1) whether the order violates any constitutional rights or is inconsistent with the Constitution of the United States, and (2) whether the order is within the authority granted to the President through the Constitution or through an act of Congress. If the order violates the Constitution, the judiciary has the power to declare it null and void.

Likewise, if the order exceeds the authority given to the President by Congress, or if it conflicts with an act of Congress, the judiciary has the power quash it. Theoretically, the President has no power to make laws through executive orders. However, if his executive order is related to the execution of federal law, and if it doesn’t violate the Constitution of the United States or conflict with an act of Congress, it will survive scrutiny by the judiciary. In the case of the travel ban, the issue has not been completely resolved. The judiciary has delayed the execution of the travel ban pending further review. Professor Seidenfeld explained that there would be a trial to determine whether the travel ban violates the Constitution by depriving people of their Constitutional rights without due process of law, or by violating the “Establishment Clause” of the Constitution. The Establishment Clause states, “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.”

One caller asked why the President can’t just do what he wants now that Congress is controlled by Republicans. Professor Seidenfeld explained that the fact that the Republicans control Congress in no way gives the President free reign to do whatever he wants. His power is still limited to the power given to him by Congress or the Constitution, and his orders are still subject to judicial review.

Overall, I found the subject fascinating, and Professor Seidenfeld’s explanations enlightening. I hope those of you who watched enjoyed it too. We are working to revitalize LawCall by choosing topics that are legally fascinating and affect us all. This Sunday, Jaeson Homola will be discussing the medical marijuana law and what it means for Floridians. As always, we encourage you to call in during the show with your questions or comments. We are committed to engaging in discussion with you about the legal topics of today.