Communities

There Is A Way To Revoke An Executive Order But...

by Andre Grant

February 3, 2017
President Donald Trump signs an executive order

On Monday, January 30, acting Attorney General Sally Q. Yates was fired by President Donald Trump. The firing occurred after Yates instructed Department of Justice lawyers not to defend Trump’s executive order, which banned Syrian refugees from the United States indefinitely, banned all refugees for 120 days, and banned visa and green card holders from seven Muslim majority countries for 90 days. President Trump claimed the temporary stoppage was to be used for the “extreme vetting” of refugees and other “aliens.” Ms. Yates remained unconvinced of the order’s legality.

In a statement to the public, the White House remarked:

“The acting Attorney General, Sally Yates, has betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States. This order was approved as to form and legality by the Department of Justice Office of Legal Counsel.

Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration.

It is time to get serious about protecting our country. Calling for tougher vetting for individuals traveling from seven dangerous places is not extreme. It is reasonable and necessary to protect our country.

Tonight, President Trump relieved Ms. Yates of her duties and subsequently named Dana Boente, U.S. Attorney for the Eastern District of Virginia, to serve as Acting Attorney General until Senator Jeff Sessions is finally confirmed by the Senate, where he is being wrongly held up by Democrat senators for strictly political reasons.”

The order Yates found indefensible caused chaos at airports all over the country. Many passengers who were refugees, visa holders, or green card holders from the Muslim countries affected by the ban were already in the air when the order was signed. When they landed, they were either told by the Department of Homeland Security to go back to their point of origin or they were held pending clarification. Green card holders who were caught up as a result of the executive action’s wording were also detained.  

Protesters began to bombard the international terminals of those being detained all over the country. Lawyers flooded these areas, trying to help travelers sort out what had happened, and the ACLU filed suit in Virginia and New York. Within hours, two separate judges moved to temper the order.

As Trump’s executive orders play at the forefront of our minds, Quartz asks, “Can an executive order be revoked?”

It turns out they can, but they rarely are. Here’s a look at what each branch can do:

What the president can do

The president can reverse, change, or supplant his own order, but as Alvin Tillery, an associate professor of Political Science at Northwestern speaking to Quartz tells it, it would be unadvised. “This early on, to admit that you’ve made such a huge mistake would be very politically damaging,” claims Tillery. “And I think that the response with protests and so on, it would just give further fodder to people who want to challenge (Trump’s) policy positions.”

What Congress can do

If an executive order written by the president falls within the purview of Congress, then it can be reversed, changed, or supplanted by them—though it’s never really done. According to The Intercept, it can take a long time before they get a law passed wrestling jurisdiction back to Congress or making part of the order impotent. An example of Congress thwarting an action would be that of Obama’s order to close Guantanamo Bay, which was gutted by Congress by removing the funding to actually move prisoners.

What the courts can do

It’s rare that courts side against the president (though a more recent example would be when the Supreme Court effectively killed Obama’s 2014 executive order on immigration that would have shielded millions of undocumented people from deportation and allowed them to work in the United States). In that case, the court reached a stalemate, which then vaulted the case back to a lower court’s ruling, denying the order. Traditionally, however, the courts don’t take this this type of action. In Erica Newland’s “Executive Orders In Court,” printed in the The Yale Law Journal, she shows that judges overwhelmingly rule in favor of the government in cases related to executive orders.

While executive orders aren’t blank checks for presidents to do whatever they desire, they are quite powerful. Despite there being myriad reasons to revoke an executive order, it rarely happens. For example, though Judge Ann M. Donnelly of New York and Judge Leonie Brinkema of Virginia both placed limits on Trump’s executive order, they did not reverse it on constitutional grounds. Getting an executive order completely reversed—even one as broadly written as this one—is an uphill battle.

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There Is A Way To Revoke An Executive Order But...