• The constitution provides authority to the executive branch that can justify presidential executive orders as long as they are consistent with that authority.
• Executive orders that carry out existing law or direct the work of executive branch agencies are appropriate uses of presidential power. Those that coopt the power of the other branches are not.
• Recent orders governing administrative regulations are clearly constitutional, those that conflict with court orders related to immigration are not, and the tariff orders are probably an overreach into congressional power but likely allowed by current court precedent.

​A new presidential administration always raises questions about appropriate and inappropriate uses of presidential power. Still, President Donald Trump’s second administration has made such questions more pressing because he has been active in issuing executive orders and asserting presidential power. For perspective, in the first few months of his second term, President Trump issued 116 executive orders, the most in a year since the Harry Truman administration.

The main issue is not the number of orders issued but their legal validity. This, in turn, requires some context.

The starting point is Article II of the Constitution. It begins: “The executive Power shall be vested in a President of the United States of America.” The president’s powers are described in the rest of the article, including the role as commander in chief of the armed forces, the authority to issue pardons, the power to make treaties and nominate federal officers, and the responsibility to “take Care that the Laws be faithfully executed.”

These are the parameters for the exercise of executive power. Within the lane established by the Constitution, the president has pretty broad power. In fact, executive power is vested in “a” president, which seems to establish that the president can direct any exercise of executive power that is not specifically circumscribed by other constitutional provisions (like the requirements of Senate confirmation of treaties and nominations). Alexander Hamilton argued that this power needed to be reposed in one person to allow for “energy in the executive.” There are practical benefits to this “unitary executive” understanding.

It must be noted that an energetic single executive does not have power outside constitutional parameters. The president may have oversight of executive power but does not have legislative or judicial power vested in the other branches.

So, executive orders or actions that faithfully carry out existing law or that direct the work of the executive branch agencies are appropriate uses of presidential power. Those that coopt the power of the other branches are not.

To take some examples:

A January 31 executive order that requires federal administrative agencies to eliminate ten regulations for every new regulation they implement is consistent with presidential authority over executive branch agencies.

The Trump administration’s decision to send a man to be imprisoned in El Salvador despite a court order prohibiting his removal from the country would overreach the president’s authority by allowing the executive to act in a judicial role.

One of the issues getting the most attention now is tariffs. The Constitution gives Congress the responsibility to impose taxes and tariffs on imported goods. Thus, on its face, an executive order imposing tariffs is a legislative act, not an executive act. Congress has, however, delegated to the executive branch the authority to impose tariffs in some instances, and there are some Supreme Court precedents that could be understood to allow this delegation. That could make executive branch tariffs legally permissible, but whether the legislature can dismiss constitutional requirements by delegation is an important and open question. The importance of the constitutional principle of separation of powers militates against allowing this type of delegation, but in current circumstances, a court decision or congressional action is likely needed to settle the question.

Polarizing political moments create a heightened risk of presidential overreach but also misguided backlash. The validity of presidential actions can’t be determined by the person exercising it but by how that exercise comports with constitutional provisions. Misunderstanding this can lead to uncritical acceptance of inappropriate exercise of executive power or impede appropriate and necessary uses of the power. The debate over executive power needs constitutional context.