The legal boundaries of Trump’s executive orders
- UCL Law for All Society
- Oct 24
- 4 min read
By Andrea Berkovic
In the past 25 years, there has been a notable increase in the use of executive orders, underlining the rise in a highly politically polarized environment in which successfully getting policies through Congress and acquiring presidential assent has taken more time and is often more problematic. Indeed, Trump’s second term has marked an unprecedented, aggressive use of executive power, culminating in a record-breaking 147 executive orders issued during the first 100 days of his mandate, with over 200 as of today – a number unparalleled in modern history. Trump’s use of executive orders is considered problematic, as these orders often either overtly exceed his power, or attempt to use valid powers for invalid purposes, as noted by Constitutional scholar Willaim Baude. Many of Trump’s executive orders are thus being challenged in the courts. With Trump, executive orders are used less as an administrative tool than a policy-making instrument to bypass Congress. This highlights the way in which executive orders can become constitutionally problematic when used to implement sweeping policy changes without clear congressional authorization, effectively circumventing the legislative branch’s constitutional role and testing the limits of the separation of powers.
Article II of the Constitution grants the president executive power. Executive orders are a way for the president to exercise his legal powers, but it is not a source of power itself. Every executive order must derive authority from a preexisting source – either a specific constitutional provision or an enacted federal statute. This means executive orders are inherently limited by the scope of existing law. Although executive orders allow presidents to act rather rapidly, they are an inherently fragile tool of governance, as they can be reversed or modified by subsequent presidents, making them a very impermanent policy instrument.
While the president may direct the executive branch, Congress and the states remain critical constitutional counterweights. Congress retains the power to create agencies, appropriate funds, and define how money is spent. When a president refuses to follow Congress’ allocation of funds, as occurred under Trump’s administration with his significant reduction in spending towards the Department of Education, this raises profound separation-of-powers concerns. Yet as political polarization deepens, these checks grow weaker, allowing executive orders to operate to a much greater extent.
Trumps’ executive orders often test constitutional boundaries, and exceed their original intended scope of use. For instance, his order attempting to end birthright citizenship, especially targeting undocumented immigrants, directly conflicts with the 14th Amendment’s citizenship clause. The president has justified his position by claiming the Amendment was not meant to ‘extend citizenship universally.’ However, critics argue this fundamentally misunderstands executive authority – Trump is attempting to rewrite constitutional provisions through executive order, when such changes can only be accomplished through the constitutional amendment process.
The use of executive order to put in place blanket tariffs, referring notably to the International Emergency Economic Powers Act, has equally been ruled illegal by a US appeals court, claiming that it exceeded his presidential authority. In May, the US Court of International Trade ruled that Trump did no not possess the authority to use said legislation to impose worldwide levies without the explicit consent of Congress. The Appeals Court ruling could discern no clear congressional authorization that would justify Trump imposing such broad tariffs. This misuse of emergency economic powers mirrors his broader pattern of invoking exceptional authority to justify ordinary policy goals – a pattern that reappears in his approach to deportations.
Trump has used the Alien Enemies Act of 1798 – wartime law he invoked via executive order – to accelerate deportations. This law was last used in World War II to intern non-US citizens, primarily of Japanese, German, or Italian descent. Trump’s attempt to use this law against alleged Venezuelan gang members was rejected by an appeal court as they found no ‘invasion or predatory incursion’ to justify wartime law.
These three cases – birthright citizenship, tariffs, and deportations – reveal a constituent pattern: Trump invoking executive authority where it does not exist or stretching wartime and emergency statutes far beyond their intended scope. In each instance, courts have found that the president cannot use executive order to accomplish that which would require either congressional legislation or constitutional amendment. The above pattern suggests a systematic effort to govern without congressional involvement, raising questions about whether the accumulation of such orders constitutes a constitutional crisis, as proposed by the New York Times. Such attempts to bypass Congress have inevitably drawn judicial scrutiny, with nearly 30% of his first-100-days orders being challenged in court.
Bibliography:
https://news.uchicago.edu/story/trumps-executive-orders-how-do-they-work-and-whats-their-legal-basis
Who Checks the Executive? Battle of the Branches — Chicago Law school — YouTube video
https://www.ft.com/content/fd647540-5447-4469-8115-49e5086fdf62
https://www.ft.com/content/f3c7deb6-928c-426c-8dbc-574b21b02063
https://harvardlawreview.org/blog/2025/04/president-trump-in-the-era-of-exclusive-powers/
Trump's Executive Orders: How Much Legal Authority Do They Have? Bloomberg Law – YouTube
Are Trump’s Executive Orders Creating a Constitutional Crisis? New York Times Podcasts
Edited by Artyom Timofeev