President Donald Trump’s announcement that he will consider using an executive order to get a citizenship question on the 2020 census is but the latest presidential attempt to exaggerate or mythologize the power of the executive order. But a president who wants to shape the world via executive order must face four inconvenient legal truths.
The first is that the Constitution gives presidents very little peacetime domestic power to do anything that affects the world beyond the executive branch itself. Regulating interstate and foreign commerce—that’s a congressional power. Raising and supporting the military—likewise. So are a great many other things, such as the control of public lands, the protection of intellectual property—and the direction of the census.
The second truth, implied by the first, is that before a peacetime president may affect the public at large, he must find a license to do so in a statute that Congress has enacted. Congress exercises its powers through statutes, hiring the executive branch to serve as its agent. To combat pollution, it authorizes the Environmental Protection Agency. To administer federal disability insurance, it vests power in the Social Security Administration. And so on. Congress sometimes grants administrative authority directly to the president, but that’s the exception, not the rule. (One important exception is the grant of authority to exclude foreign nationals from the U.S. on national-security grounds, which is the authority on which Trump based his travel-ban orders.)