For Real, What Do Trump’s Executive Orders Do?

Lately, we’ve been hearing a lot about executive orders.

Since taking office in January, President Trump has signed at least 130 EOs, plus more than 75 presidential proclamations and memoranda, on everything from “Restoring Truth and Sanity to American History” to “Eradicating Anti-Christian Bias” to “Ending Procurement and Forced Use of Paper Straws.” (You can find a full list here.) That’s significantly more action than we’ve seen from Congress: In the same period of time, they have passed just five laws.

No issue, it seems, is too big or too small for the president to issue an EO about it. He’s issued orders about law firms he doesn’t like (including my former employer WilmerHale), ideas he thinks are fun (like starting a sovereign wealth fund or declassifying the JFK investigation), and, occasionally, policy platforms he actually ran on (e.g., bringing back “America’s Beautiful Clean Coal Industry”). Many offer a healthy dose of Orwellian irony (“Ending the Weaponization of the Federal Government”).

So let’s talk about EOs: what they are, what they can (and can’t) do, and why we should (and shouldn’t) care about them.

First, let’s make one thing clear: An executive order isn’t a law. An EO is just a statement about the president’s policy preferences and how they want to exercise authority. It’s essentially a speech to federal workers, with the public listening in. And like most speeches, they don’t deliver on-the-ground impact on their own.

That’s important. Because while the president is well within his authority to withdraw EOs issued by prior presidents or to issue instructions to the executive branch, he has no power to direct the behavior of states, companies, or people who don’t work at the federal government. He can’t change federal law by fiat, he can’t unilaterally abandon the responsibilities Congress has given to the executive branch, and he can’t direct anyone else to do these things either. And (sorry, DOGE) he does not have the power of the purse.

So when the president dashes off yet another new pronouncement to distract us from yet another governmental gaffe or misstep, I encourage you to take a deep breath and ask some basic questions. Like: Is this something that the agency was already doing anyway? (It often is.) Does the president have any authority over the people or organizations he purports to order about? (He often doesn’t.) Is he trying to rewrite a law or regulation from his seat in the Oval Office? (Often yes, and he can’t do that.) Would following the instructions in the EO violate a law or the Constitution? (Alas, often yes.)

This isn’t to say that Trump’s EOs aren’t doing damage. Or that they aren’t potent messaging tools. And I give the guy credit: He is drowning the public, the media, and his political opponents in them. He is also keeping nongovernmental organizations off balance. We never know when another EO will drop, and when one does, we have to get right to work to understand its actual impact and whether it’s worth opposing in public or in court.

Here at Earthjustice, we are watching carefully for two specific types of EO. One type orders agencies like EPA not to enforce an existing law or regulation. The other type purports to rewrite or repeal regulations without giving the public a real opportunity to comment, as a foundational law known as the Administrative Procedure Act requires.

Sometimes we get an EO that falls into both categories. For example, check out the order titled Zero-Based Regulatory Budgeting To Unleash American Energy. This EO orders federal agencies to insert one-year “sunset clauses” in any existing regulation issued under laws like the Endangered Species Act, the Energy Policy Act, and the Mining Act. Going forward, it also calls for any new regulation under those acts to have a sunset clause of five years or less. And it instructs agencies to stop enforcing those new regulations as of the sunset date.

Aside from being illegal, this idea is bad for several reasons. Businesses and organizations can’t plan when they don’t have regulatory consistency. Writing sound regulations takes time, and if the government is constantly having to rewrite them, very little can get done. And this approach will likely lead to even more dramatic swings in government policy each election cycle, as administrations of both parties simply wait out and replace regulations they don’t like.

We are watching carefully to see how the sunset date provision plays out. In doing so, we’re keeping a few things in mind. Courts have traditionally stayed out of second-guessing agency decisions about when and how to enforce regulations. But the Supreme Court is losing interest in deferring to agency expertise – and in this case, we may be able to use that shift in norms to challenge agencies that drop the ball on enforcement.

We also know that government isn’t the only entity that can play the enforcement game. Many of the laws listed in the EO also allow regular people to sue to enforce a law. Earthjustice often represents those people in so-called “citizen suits.”

Insofar as the rest of the order tells agencies to summarily rewrite or rescind “unlawful regulations,” my thought is “bring it.” For our lawyers, repealing a regulation without following APA procedures is like giving Julius Erving a basketball and a head start. It’s so patently illegal that I would expect some industry players to warn the administration against it behind closed doors. The business sector likes certainty, so chaotic and lawless deregulation is not in their interest.

It’s still early days. The president has issued tons of EOs, but his agencies have been too busy demolishing themselves to act on them. So we can’t yet say for sure who will be affected and how—which we need to know to establish legal standing to sue. We also know that more EOs are coming.

For now, know this: We are watching out for environmental policy actions that have real on-the-ground impact, and we are reviewing every one of them for legal weaknesses that we can exploit.