Article II of the Constitution gives the President executive power over the government to aid him in his obligation to “take care that the laws be faithfully executed.” An executive order is a written directive, signed by the president, that orders the government to take specific actions to ensure this. A president’s authority to issue an executive order typically comes, either explicitly or implicitly, from a congressional statute, but on occasion presidents have justified orders on the basis of their constitutional power to execute the nation’s laws. Whether the Constitution empowers the president only to execute policies devised by Congress or additionally vests the president with substantive policy making powers has been a matter of dispute for a long time. As a result, orders based on inherent presidential powers not authorized by Congress are more likely to raise separation-of-powers concerns. In these cases, it is up to the judicial courts to determine whether the president has exercised legislative power belonging only to Congress. Therefore, it is well within the judicial branch’s rights to make rulings on executive actions.
Last month, a federal court in New Hampshire ruled that President Trump had overstepped the limits of his power and blocked his executive order that seeks to end birthright U.S. citizenship. In the United States, birthright citizenship is guaranteed by the Fourteenth Amendment to the Constitution. Specifically, it states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” This principle was confirmed by the 1898 Supreme Court case United States v. Wong Kim Ark, which clarified that children born in the U.S. to immigrant parents are citizens, regardless of their parents’ immigration status. Since birthright citizenship is a right written into the Constitution and upheld by Supreme Court precedent, the courts decided that Trump does not have the power to terminate it through executive order.
So far, the Trump administration has not defied any orders from the U.S. Supreme Court. However, statements made by the President and Vice President have suggested that they don’t intend to honor these recent court rulings against their executive orders. Vice President Vance is quoted to have said in 2021: “If I was giving [Trump] one piece of advice… when the courts stop you, stand before the country… and say, ‘the chief justice has made his ruling, now let him enforce it.’” This Jacksonian statement holds in contempt the values of the separation of powers that keep our government a functioning democracy. If the Trump circle is willing to ignore court orders and defy judicial authority – an authority that is enshrined in Article 3 of the U.S. Constitution – there is nothing stopping him from bypassing other systems of government to enact any legislation he wants. The courts technically have tools to force compliance — whether that be through fines or sanctions, finding someone in contempt or even jail time – however experts generally consider these to be empty threats. So what happens if the executive branch ignores the judicial branch? How can the United States protect itsself against that constitutional crisis?
This article is very insightful. Since the election, I have been glued to the New York Times website, reading about how fast President Trump is issuing executive orders. How many of the lawsuits against the president will turn out. I have also started worrying about the legitimacy and power of our judiciary and legislative system. While POTUS can make executive orders like you mentioned, they are typically based on laws passed by Congress, rather than POTUS taking the alternative approach and basing his orders on his constitutional authority over congressional approval. My primary worry is about the separation of powers and the legitimacy of all branches of government being able to maintain checks and balances. You used birthright citizenship as an example of the courts checking President Trump on his executive powers. However, what concerns me is what happens if he chooses to go through with an order even though the courts have made a ruling that does not support it. Recently, I read about the current administration causing tension with the judiciary by partially withholding funds from federal judge McConnell’s order to keep federal funds flowing. At the same time, the case was being considered for the docket. McConnell, at best, could reiterate what he had said previously with the threats. But as you mentioned, these threats are often empty, especially when the executive branch is supposed to be the enforcers of the law, so it becomes challenging to enforce anything. This scares me: A constitutional crisis could come from this if the executive branch refuses to comply with court orders. For decades, our government has been functional because of the balance of power and mutual respect of authority between them all, continued public defiance and damaging rhetoric of the judiciary and their powers by our top leaders of the government could weaken an essential part of the way we operate as a democracy in America. At the end of your article, you ask about the next steps if the executive branch ignores judicial rulings and how we can protect ourselves from the potential constitutional crisis. Would the legislative branch step in to support the judiciary if the executive continues to defy court rulings, or do you think they would also work to delegitimize the courts, given the current state of the federal government?
I appreciate your in depth and thorough analysis of the current state of separation of powers in the United States. We are truly living in unprecedented times that are leading to shocking increases in the purview of executive power under the Trump Administration. I think that Vice President Vance’s quote that “judges aren’t allowed to control the executive’s legitimate power” is particularly concerning and definitely raises questions about the strength and liability of our democratic institutions and separation of powers as a whole. I think that you pose a great question at the end of the article when you ask what happens if the executive branch ignores the judicial branch. I think analyzing the role of actors in the midst of democratic breakdown highlights this idea well. When there is a legitimacy crisis and actors are loyal, democracy remains stable but when there is a legitimacy crisis and actors are disloyal, it leads to democratic breakdown. While these two scenarios are pretty clear, there is a third scenario in the case of semi loyal actors that I think applies to this situation. When the actor is semi-loyal, we do not know what the resulting effect will be. At this point, I see President Trump as a semi-loyal actor and only time will tell whether he becomes a loyal actor and upholds the standards of democracy or a disloyal actor, leading to democratic breakdown.