Many of Trump’s orders get challenged in court, because they try to do things that require legislation from Congress.
President Donald Trump issued yet another executive order Thursday night, this time banning TikTok and WeChat—two popular apps owned by Chinese companies—in 45 days, unless they sell to an American company.
President Trump is also saying that he will sign executive orders to issue a payroll tax cut, an eviction moratorium, extra federal unemployment benefits, and options to repay student loans, as Republicans in the Senate haven’t been able to find a coronavirus relief bill they can pass with 50 votes.
President Trump has relied heavily on executive orders, signing 176 of them in less than four years. That’s particularly surprising, as Trump enjoyed GOP control of Congress for the first two years of his administration. By contrast, President Barack Obama signed 276 in eight years. And many of Trump’s orders have been largely symbolic, PR moves that grab attention but accomplish little. That’s because he tries to do things that require Congress’ approval and ultimately his orders are challenged in court.
So what can presidents actually do through executive order?
It’s murky. The Constitution does not explicitly give the president the authority to make these policy proclamations, according to the nonpartisan Congressional Research Service. But for hundreds of years, these orders have been accepted as a part of presidential power.
Technically, only Congress has the power to write laws and pass them. The president has to sign off, but Congress can override that with a super majority of votes. Executive orders, on the other hand, completely bypass that system.
For example, President Trump’s idea of pushing a payroll tax holiday by executive order would suspend the collection of taxes related to Social Security and Medicare. That move would only benefit highest-income earners the most, and would not help anyone who is unemployed.
“I have the right to suspend it, and I might do it myself, I have the absolute right to suspend the payroll,” Trump said in an interview with Fox & Friends.
But Bill Hoagland, senior vice president of the Bipartisan Policy Center and a former Republican staffer, said it is unclear whether any of Trump’s executive orders on coronavirus relief will hold up.
“I think the answer is clear that some things he can do via executive order legally, others he probably can do but could be challenged in court,” Hoagland said in an email to MarketWatch.
The president’s move to ban TikTok without the input of Congress faces similar legal challenges.
“The Administration paid no attention to facts, dictated terms of an agreement without going through standard legal processes, and tried to insert itself into negotiations between private businesses,” TikTok said in a statement after the executive order was signed.
And University of Detroit law professor Kyle Langvardt told Business Insider that Trump “can’t outright ‘ban’ TikTok itself…But he can interfere so heavily with TikTok’s business that an American TikTok clone will replace it.”
In other words, these recent batch of executive orders will all likely see their day in court, just like the ones that came before.