While comparing what President Trump is doing with his executive power to what Barack Obama did, I noted that the ultimate judge of whether Trump has gone too far would not be politicians, but the courts.
Well, just two weeks into his presidency, Trump has already had one of his executive orders halted by those courts.
The Washington state judge's ruling late Friday represents a rare and early rebuke of presidential authority that could portend plenty of legal fights over Trump's powers in the months and years to come.
As The Post reports:
A federal judge in Washington state on Friday temporarily blocked enforcement of President Trump’s controversial ban on entry to the United States, and airlines planned to begin allowing passengers from banned countries to board, according to a person familiar with the matter.
Following the ruling, government authorities immediately began communicating with airlines and taking steps that would allow travel by those previously barred from doing so, according to a U.S. official. At the same time, though, the White House said in a statement that the Justice Department would “at the earliest possible time” file for an emergency stay of the “outrageous” ruling from the judge. Minutes later, it issued a similar statement omitting the word “outrageous.”
So how often does this kind of thing happen? The short answer is not very.
It remains to be seen what will ultimately happen with Trump's order banning the citizens of seven majority-Muslim countries from entering the United States. The current halt is temporary but was granted given the judge viewed the case as likely to succeed. And executive-authority cases such as this will usually quickly land in the Supreme Court, which could reverse the judge's ruling.
But even as Republicans complained about Obama's alleged executive overreach, the court's didn't step in all that often with him — and really haven't with other presidents.
"It’s pretty rare, because the courts give the presidents a lot of leeway," said Daniel P. Franklin, an executive-authority expert at Georgia State University. "And presidents usually don’t have to go to court to defend these things."
The two most-high-profile examples of Obama's executive orders being stopped by the courts were:
- His most controversial unilateral move, halting the deportations of millions of illegal immigrants, which a 4-4 Supreme Court recently declined to revive.
- His move to expand the salary ceiling for overtime pay, in which the Labor Department's rule was recently halted by a federal judge in Texas
judge. Both of these happened in 2016.
Separately, Obama's move to use recess appointments to install members of the National Labor Relations Board in 2012 was struck down unanimously by the Supreme Court. That wasn't an Obama executive order, but it was a key test of his executive authority.
Republicans have repeatedly argued that Obama's use of executive authority was struck down unanimously more than a dozen times. PolitiFact in 2014 rated this claim as false; most of the cases mentioned either weren't about Obama's executive authority or originated in the George W. Bush administration. The high-profile examples of Obama overstepping his bounds are the ones above.
"Judicial checks on executive orders appear to be infrequent, in keeping with the view that the judiciary seeks to avoid 'political' questions," said Meena Bose, an executive-authority expert at Hofstra University.
But that might not necessarily be the case with Trump. As a man who has expressed admiration for authoritarian rulers and used his early executive orders to deal with hot-button and often-controversial issues, Trump almost seems to be spoiling for a fight over this.
The White House's momentary use of the word "outrageous" in its statement Friday night would seem to be further proof of that. And Trump himself just tweeted this response to the court's ruling:
When a country is no longer able to say who can, and who cannot , come in & out, especially for reasons of safety &.security - big trouble!
— Donald J. Trump (@realDonaldTrump) February 4, 2017
The question is whether this causes Trump to rethink his use of executive authority — or whether he keeps fighting and pushing the bounds of presidential authority. Franklin sees the latter as being quite likely.
"One of the many differences between Obama and Trump is Obama understood limits of what executive order could be," Franklin said. "I think the Trump people thought they could rule by edict, and they can't."