Can Congress Overturn an Executive Order by the President?

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President Donald Trump has declared that he wants to end birthright citizenship with an executive order. The first clause in the 14th amendment states that a person born in the United States is a citizen.

But the president says this should not apply to the children of undocumented or illegal immigrants. Axios was the first to report the news, sharing an interview reporter Jonathan Swan conducted with the president. In the clip embedded below, President Trump states that he has the power to eradicate birthright citizenship and does not need Congress’ permission to do it.

The American Civil Liberties Union argued that a president “can’t erase the Constitution with an executive order” and accused President Trump of trying to “fan the flames of anti-immigrant hatred.” House Speaker Paul Ryan was among the Republican lawmakers who have stated that the president “cannot end birthright citizenship with an executive order.”

But in general, executive orders are not necessarily set in stone. There are steps Congress can take to overturn an order from the executive branch.

Here’s what you need to know.

1. Congress Has the Power to Pass New Legislation to Override an Executive Order, Which Then Would Need to Have the Votes to Survive a Presidential Veto

The legislative branch has the ability to override an order from the top executive, but it would be a lengthy and tricky process. As explained by the National Constitution Center in Philadelphia, Congress can pass a bill to make the order obsolete. Both the House and the Senate must vote to approve it.

It’s safe to assume the bill would never make it past the president’s desk. He has the authority to reject any bill Congress sends over for his signature. Congress could then override the president’s veto.

2. Congress Has Rarely Overturned Presidential Vetoes Since 1789

Here’s a caveat about overturning a presidential veto: it’s happened very rarely since the founding of the United States. If Congress sends a bill to the president for his signature, and he vetoes it, the legislative branch can override his decision with a two-thirds majority vote in both the House and the Senate. The bill can then become a law without the president’s approval.

42 percent of all presidential vetoes from 1789 through 2004 were pocket vetoes. This occurs when a president simply decides not to sign a bill that Congress has sent to his desk. If Congress is not in session, then the bill does not become law.

The Center for Legislative Archives looked at 1,484 regular vetoes by presidents up to 2004. Out of those, Congress overturned just 106 of them. That’s a rate of only 7 percent.

3. The U.S. Constitution Does Not Explicitly Grant Presidents Executive Order Power

Presidents have been issuing executive orders since the founding of the United States. But interestingly, the Constitution does not explicitly grant this power.

According to the Congressional Research Service, “Executive orders, presidential memoranda, and proclamations are used extensively by Presidents to achieve policy goals, set uniform standards for managing the executive branch, or outline a policy view intended to influence the behavior of private citizens. The U.S. Constitution does not define these presidential instruments and does not explicitly vest the President with the authority to issue them. Nonetheless, such orders are accepted as an inherent aspect of presidential power.”

Article II of the Constitution lays out the authority of the executive branch. It includes in part:

“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

4. The 14th Amendment Gave People Born in the United States Citizenship

The 14th Amendment was approved by Congress on June 13, 1866, after the conclusion of the Civil War. The change was ratified by the states on July 9, 1868. One of the things it did was grant citizenship to all former slaves and their descendants.

The 14th Amendment nullified the Supreme Court’s 1857 Dred Scott v. Sandford decision. In that case, the justices ruled that slaves were considered property, not American citizens. Further, the court decided that people with African heritage, even if they were free persons, could not become citizens.

Here is the language of the amendment:

“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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

5. Executive Orders Have a History of Controversy

Every president of the United States has had the power to sign executive orders. President Franklin D. Roosevelt signed the largest number of them during his time in office: 3,721. (However, it is worth pointing out that F.D.R. is the only president in U.S. history to serve three full terms in the White House). President Wilson is second on the list, with 1,803 executive orders.

There is precedent for an executive order to be carried out even when it has been deemed unconstitutional. In 1861, at the start of the Civil War, President Lincoln suspended habeas corpus, which guarantees the right to a fair trial. He argued this was in his right because Article 1, Section 9 of the Constitution stipulates as such: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion and invasion the public safety may require it.”

The chief justice of the Supreme Court at the time, Roger Taney, ruled that Lincoln’s executive order was unconstitutional. But the Union army ignored the chief justice. And Congress did not challenge it either, so the order stood.

Other controversial executive orders included President Roosevelt’s decision to put Japanese-Americans into internment camps during World War II; President Eisenhower’s call to enforce school desegregation in Little Rock by federalizing the Arkansas National Guard; and Roosevelt’s establishment of the Works Progress Administration in 1935.

As for presidents in more recent history and their number of executive orders signed, according to the American Presidency Project and Pew Research:

Ronald Reagan: 381
George H.W. Bush: 166
Bill Clinton: 364
George W. Bush: 291
Barack Obama: 277

According to the Federal Register, President Trump has signed 85 executive orders as of September 2018.

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