Executive Orders Used to Bypass Congress: Implementing Policy Through Unilateral Presidential Action
Tier 5Documented2017-01-20 to 2021-01-20
Factual Summary
During his first term in office, Donald Trump signed executive orders at a pace that exceeded most of his modern predecessors, using presidential directives to implement policies that Congress had declined to authorize or fund through legislation. In his first 100 days, Trump signed 32 executive orders, the most of any president in that period since Franklin Roosevelt. Over the course of his first term, Trump signed 220 executive orders, the highest four-year total since Jimmy Carter.
The most consequential use of executive power to circumvent Congress involved the border wall with Mexico. Trump had repeatedly promised during the 2016 campaign that Mexico would pay for the wall. When Mexico refused and Congress declined to appropriate the requested funds, Trump declared a national emergency at the southern border in February 2019 and used that declaration to redirect approximately $6.1 billion from military construction budgets and Treasury Department forfeiture funds to wall construction. Congress had explicitly refused to appropriate more than $1.375 billion for border barriers in the 2019 appropriations bill, far less than the $5.7 billion Trump had demanded. The national emergency declaration was designed to bypass this congressional decision.
Trump also used executive orders to implement the travel ban targeting predominantly Muslim countries, to withdraw from the Paris Climate Agreement, to reverse environmental regulations, and to alter immigration enforcement priorities, all in areas where legislation would have been required under prior practice or where Congress had not authorized the specific policy. Several of these executive actions were challenged in court, with some upheld and others struck down or modified.
The House of Representatives passed a resolution to terminate the national emergency declaration, and the Senate voted to do the same on a bipartisan basis, with 12 Republican senators joining all Democrats. Trump vetoed the resolution, marking the first veto of his presidency, and Congress lacked the votes to override. The Senate voted to terminate the emergency declaration a second time in 2019, and Trump vetoed that resolution as well.
Primary Sources
1. Executive Order 13767, "Border Security and Immigration Enforcement Improvements," January 25, 2017
2. Proclamation 9844, "Declaring a National Emergency Concerning the Southern Border of the United States," February 15, 2019
3. H.J. Res. 46, joint resolution to terminate the national emergency declaration, passed by both chambers and vetoed by Trump, March 2019
4. Congressional appropriations bills for FY2019 and FY2020 showing border barrier funding levels
Corroborating Sources
1. Bipartisan Policy Center: "Trump's First 100 Days," 2017
2. Washington Post: "Why Trump can't simply build a wall along the U.S.-Mexico border with an executive order," January 25, 2017
3. California Senate Office of Research: "President Trump's First 100 Days," May 10, 2017
4. NPR: "Trump Vetoes Resolution Blocking His National Emergency Declaration," March 15, 2019
5. Brookings Institution: "Tracking deregulation in the Trump era," updated 2020
Counterarguments and Context
Executive orders are a lawful tool of presidential power, and every modern president has used them to direct executive branch policy. Trump's defenders argued that his use of executive orders was consistent with the authority granted to the president under Article II of the Constitution and that the policies he implemented addressed genuine national security and policy concerns. The Supreme Court upheld the revised travel ban in Trump v. Hawaii (2018), finding that the president had broad statutory authority over immigration. Defenders also noted that President Obama had used executive action extensively on immigration policy, including the DACA program, after Congress failed to pass comprehensive immigration reform. The volume of executive orders alone is not a meaningful metric, as many executive orders are routine or symbolic. However, the border wall case represents a qualitatively different use of executive power: Congress explicitly voted to deny the requested funding, and Trump used an emergency declaration to redirect money Congress had appropriated for other purposes. When Congress then voted on a bipartisan basis to terminate the emergency, Trump vetoed that resolution, creating a situation in which the president used executive power to override an explicit legislative decision about spending. This sequence is distinct from the routine use of executive orders to direct policy within areas of established presidential authority.
Author's Note
This entry is classified as Tier 5 because the assessment that Trump's executive order usage represented a normative violation of the separation of powers involves interpretive judgment about the boundaries of presidential authority. The use of executive orders is lawful, and the debate about their proper scope is longstanding. The border wall funding case, in which Trump overrode an explicit congressional appropriations decision through an emergency declaration and then vetoed bipartisan resolutions to terminate that declaration, represents the strongest factual basis for the claim that executive power was used to bypass rather than supplement congressional authority.