What Trump can — and cannot — do with a stroke of the pen

In the words of U.S. Vice President Mike Pence, right after his inauguration President Donald Trump went into the Oval Office with a “stack of papers” to sign. Specifically, he’s been busy issuing a series of executive actions designed to implement as much of his platform as possible without getting Congress or state governments involved. Below, the Post’s Tristin Hopper outlines what Donald Trump can and cannot do unilaterally.

WHAT CAN A PRESIDENT DO WITH EXECUTIVE ACTIONS?

There are two basic documents that Trump has been signing to encode executive action: executive orders and presidential memorandums. Both essentially carry the same power except that memorandums aren’t subject to the same level of transparency as an order. But neither document can make law, they can only clarify or further an existing law. In Trump’s Wednesday executive order for a Mexican border wall, for instance, he instructs federal agencies to, “in accordance with existing law, … take all appropriate steps to immediately plan, design and construct a physical wall.” The order is careful to cite existing laws such as the Secure Fence Act. If it didn’t, the document would be open to a Supreme Court challenge. This was a lesson Harry Truman learned in 1952 when the Supreme Court overturned his executive order attempting to seize the nation’s steel mills.

IS TRUMP SIGNING MORE EXECUTIVE ORDERS THAN OTHER PRESIDENTS?

His rate of executive actions is certainly high. As of Wednesday, Donald Trump’s (surprisingly elaborate) signature had been added to the bottom of four executive orders and eight presidential memorandums. By contrast, Barack Obama signed five in his first week. Franklin Roosevelt, who racked up a record-breaking 3,721 executive orders as a four-term president, signed just three in his first week. Regardless, it’s not the number of executive actions that counts, but what they do. Roosevelt used a single executive order to employ millions for the Works Progress Administration, and also to intern thousands of Japanese-Americans during the Second World War. Either of those orders arguably had infinitely more effect on U.S. history than when John F. Kennedy used an executive order to recognize the Coffee Study Group.

WHAT CAN’T EXECUTIVE ACTIONS DO?

One of Obama’s first actions as president was to sign an executive order mandating the closure of the Guantanamo Bay detention camp. Eight years later, and Guantanamo still has 41 prisoners. So it’s safe to say that executive orders aren’t exactly imperial dictates. The main limitation is that an executive order can’t repeal a law. That’s why Trump didn’t sign a “repeal Obamacare” executive order on his first day in office. Instead, he signed a vague order directing federal agencies to “take all actions consistent with law to minimize the unwarranted economic and regulatory burdens of the Act.” The repeal, if it comes, will have to come from Congress.

WHAT HAVE TRUMP’S ACTIONS DONE?

Of the 12 actions Trump has signed as of Wednesday, the big ones are the border wall, a 90-day federal hiring freeze, the Keystone XL pipeline and a U.S. ban on federally funding international groups that provide abortion. But very few of these actions represent the final word: They are merely directives to speed up, study or kickstart a new policy. While it was reported that Trump “approved” the Keystone XL pipeline, technically all his presidential memo did was ask TransCanada to resubmit its application and request that federal agencies expedite its review. Probably the most final of Trump’s executive actions is his memorandum to withdraw from the proposed Trans Pacific Partnership. With no laws to overturn or regulations to be approved, the TPP is as good as dead.

ARE ORDERS AND MEMORANDUMS ACTUAL LAWS?

Sort of. They don’t need the approval of Congress and they’re legally binding, so an American could conceivably go to jail for disobeying them. But executive actions are also easily overturned: Every single one of Obama’s 275 executive orders could be undone with a stroke of Trump’s pen. The plot of the Oscar-winning film Lincoln, in fact, is a testament to the flimsiness of executive actions. After partially freeing the U.S. slave population with an executive order (the Emancipation Proclamation), Daniel Day Lewis’s Abraham Lincoln frets that the order could just as easily be overturned after the war is over. So, in order to make abolition permanent, Lincoln has to spend the rest of the movie cajoling legislators to pass the Thirteenth Amendment.

Trump seems to be doing a lot of stuff unilaterally. Should we panic? As far back as Lincoln (who also used an executive order to suspend habeas corpus during the Civil War), there has been ample hand-wringing that executive power is a loophole by which presidents can become powermad tyrants. And civil libertarians have spent the past 16 years particularly worried about the expansion of executive power as both Obama and George W. Bush established new precedents of warrantless surveillance and unilateral drone strikes, among others. But U.S. conservatives have seen a ray of hope in a President Trump. The president is reviled by Democrats, and has no shortage of policy points that repulse traditional Republicans.

Thus, he may eventually become a figure that prompts all segments of Washington to decide to dial back the swelling power of the White House.