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    Executive Orders Explained For British People

    For those of you asking, "How the fuck does American government work?"

    by ,

    In the first few weeks of the Trump presidency, you may have heard a bit about executive orders, and wondered softly to yourself, "Wait what?"

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    Is Donald Trump really just allowed to write his name on something and make it a law?

    That's a very nice train, Donald.

    Well, the tl;dr version is that the president, as head of the executive branch of government, can make an executive order to state and federal agencies to do (or not do) something.

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    An executive order doesn't have to go through the normal slow process of making laws, as in theory it only concerns the way the government will implement the laws that are already in place. So it's not technically a law – because only Congress can make laws – but it does have the ~full force of the law~.

    BUT WAIT, you may be wondering, isn't the US government set up so that the different branches of government can check each other's power in case one of them goes completely off their nut?

    That's right! There are three branches of government – the legislature (which makes laws), the executive (which implements the laws), and the judiciary (which interprets and rules on the law and the Constitution).

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    In America, all three are very strictly divided – so the legislature (i.e. Congress) is separate from the executive (i.e. the president and all his agencies), which is separate from the judiciary (i.e. the Supreme Court and all the other courts).

    The executive branch (i.e. the president and his mates) has certain powers granted to it by the Constitution. But the Constitution also limits what it can do!

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    So an executive order can't be illegal or contravene the Constitution. Trump can't make an executive order saying, "Murder is legal, all newspapers are banned, and nobody is allowed to refer to the size of my hands, which are actually the best hands and very large, maybe the largest hands ever!" Even if he really wanted to.

    Or, well, he COULD make that order, but the judicial branch – headed by the Supreme Court – could be like, "You've been a very bad boy," and strike it down.

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    Also, Congress can pass a law to change an order. The president could then veto it, BUT Congress could override the veto with a two-thirds majority.

    Basically the US government is a messy bitch who lives for drama. So let's take a look at some history for examples of executive orders put into action!

    Almost every president since George Washington has signed at least one executive order (except for William Henry Harrison, whose most memorable act as president was to swiftly die of pneumonia).

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    In Ye Olde Historie Times executive orders were often made when Congress was out of session, or during times of war.

    The first president to truly go hog wild with executive orders was Theodore "Big Stick" Roosevelt, who signed 1,081. But it was Franklin Delano Roosevelt who holds the record, signing 3,721 executive orders in 12 years as president.

    But over time the Supreme Court has made it clear there are ~limits~ to executive power, for example that time Harry Truman got his executive order dick out and started waving it around.

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    Truman issued an order in 1952 seizing control of steel mills whose employees were threatening to strike, in order to keep the supply of sweet, sweet steel flowing during the Korean War. The owners of the mills sued, and the Supreme Court deemed the order unconstitutional because the president was in direct contravention of a fancy labour relations act passed by Congress.

    Anyway, lots of time passed, George W. Bush used executive orders to expand surveillance after 9/11, blah blah blah, then came Barack Obama.

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    In his first two weeks, Obama signed LOADS of executive orders – even more than Trump. Some of his orders were vanilla, like making his staff sign an ethics pledge, and others were much spicier, like signalling his intent to close Guantánamo within a year (whoops) and banning "enhanced interrogation" techniques like waterboarding.

    For most of the rest of his presidency, Obama averaged the fewest executive orders per year since the presidency of Grover "The Groovemaster" Cleveland. But then, as time went on and he started to run out of fucks to give, Obama started to wield his executive authority more dramatically, such as with his order in 2014 to indefinitely delay deportations and grant temporary legal status to millions of undocumented immigrants.

    If this didn't make you angry and confused about executive orders at the time, it's probably because you agreed with it.

    Wait a bloomin' minute, my old matey, we hear you ask, does our sad and rainy island have anything like executive orders?

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    (This picture represents Britain.)

    Glad you asked! The answer is, not quite, but kind of! We don't have an actual system of executive orders like the US, but we DO have someone who gets to make government stuff happen just by saying so...


    Arthur Allison / PA Archive/PA Images


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    Except, of course, she doesn't really, because the British system is all coy and arch, being fundamentally based on a nod and a wink and tea and crumpets and the constant implied threat of imminent beheading.

    Basically, the British system of government has something called "royal prerogative" powers, which basically grants the right to do a whole bunch of stuff (especially foreign policy and war stuff) to the monarch. Things like declaring war, signing treaties, that sort of thing. Also, appointing the prime minister.

    But of course, in reality, it's not actually the Queen who decides on any of this.

    Nope, it's really the prime minister.

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    Well, the prime minister and her government. They will ~advise~ the Queen on what she should do with her prerogative powers, in a kind of very polite "you'd better take our advice because of that time we had a civil war" way.

    And because Britain doesn't have the same clear separation of powers between the executive (i.e. Theresa May and her government) and the legislature (i.e. parliament) that the US does, parliament still gets a say over how prerogative powers are used.

    Also, we've got so-called judges too!

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    Our judiciary is definitely separate from the executive and the legislature, and they get to be all "oi Queeny (by which we mean the government, wink wink), you can't prerogative that, that's against the law!", so in that respect it's quite like the US.

    Well, it's like the US, except that the Queen doesn't then get angry watching cable news and shout about it on Twitter. Or does she?

    Leopatrizi / Getty Images, she doesn't.

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    (Or does she????)

    Anyway let's take all the lovely things we've heard about so far and apply them to the present day, and learn the lessons of history, shall we?

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    So President Trump has started out by signing a whole bunch of executive orders. As we've already learned, that's not especially unusual, and not necessarily a sign of impending fascism!

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    Also, some of Trump’s executive orders are more about ~symbolism~ than actually getting stuff done – they're about defining what his presidency's priorities will be.

    Like his "I hate Obamacare" order, which doesn’t actually do a huge amount other than signal that the new administration doesn’t like Obamacare and will try to replace it. But Trump can’t do that with an executive order: The Affordable Care Act (to give it its fancy name) is an actual proper law, and it’ll need a lot of work in Congress to actually unpick it.

    But then there's stuff like the immigration executive order that's either a ban or definitely not a ban, depending if you ask the president or his press secretary.


    This is still not a law, exactly, but it does dramatically change how the government implements the current laws. Which raises the question: Is Trump actually allowed to do that?

    The answer is: maybe, maybe not! But what actually happens could come down to a disagreement between the executive and the judicial branches, i.e. Donald Trump and some judges.

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    The president definitely has a lot of power to determine how the US conducts immigration policy. He's got that power in part because of a law that dates back to 1952, the Immigration and Nationality Act.

    But oh my god, PLOT TWIST: Remember how in 1952 the Supreme Court was riding Harry Truman's dick about him going too far with his executive orders?


    Well, at the exact same time, Truman was trying (unsuccessfully) to veto the bill that Trump is now using as his justification for his own executive orders – on the grounds that it discriminated against immigrants on the basis of nationality.

    "Such a concept is utterly unworthy of our traditions and our ideals. It violates the great political doctrine of the Declaration of Independence that 'all men are created equal'," Truman wrote.

    Still, the law got passed. But it's been amended a lot over the years – for example, the bits about discriminating against immigrants because of their nationality got chopped out in 1965.

    So anyway, now Trump argues that because of this law, he's got the power to say that, for example, your Uncle Ali coming to visit for two weeks with a suitcase full of sweets from his village in Iran is not okay, on the grounds that he's in the wrong "class of aliens".

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    The administration has argued that the restraining order against the ban, issued by a federal judge in Seattle last week, "second-guesses the President’s national security judgment about the quantum of risk posed by the admission of certain classes of aliens and the best means of minimizing that risk". Meaning that not only are Uncle Ali's sweets wrong, they are dangerous.

    Not so fast, say Trump's opponents – the president is still bound by the law and the Constitution, and even having broad powers doesn't mean that you get to exercise them arbitrarily! They argue that the president is contravening a different section of the same law – the one which bars discrimination on the grounds of nationality.

    This is all very complicated, but if you are strong and brave you can read more about it here.

    Who is right? So far the courts seem to agree with those who oppose the ban – but we won't really know until the full issue has been argued out, at length, in a whole bunch of federal courts.

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    Right now, no courts have actually ruled directly on the order itself: All the legal fights so far have been about whether enforcing the order should be paused in advance of those legal arguments. And almost all the courts who've looked at it agree that there's a good enough chance the ban will eventually be overturned by the courts, and that therefore it shouldn't be enforced until a final ruling has happened.

    In the meantime, tens of thousands of people's futures are left hanging in the balance. So. Yup.

    Anyway, that’s what executive orders are! We’ve learned about the separation of powers, the branches of government, checks and balances, and that Harry Truman was sometimes a dick and sometimes not a dick.

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    See you in about a week, when we'll use three little dogs to explain why your heart hurts and everything is bad.

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