Your Constitutional Minute: Separation of Powers Cont.

The Constitution

Separation of Powers is a structural element fundamental to America’s constitutional system. Most of us learned about that element as the “three branches of government”—the allocation of different powers to the legislature, the judiciary and the executive branch. The Constitution limits the members of each branch to the exercise of powers specific to that branch, as a protection against any one part of government gaining too much authority.

Trump’s Executive Orders

An Executive Order is defined as a presidential directive ordering agencies of the federal government within the Executive branch to take specific actions in pursuance of the Executive’s duty to ensure that the laws of the nation “be faithfully executed.” To the extent that such orders apply to matters not properly within the Executive’s authority, they are legally unenforceable. For example, Trump’seffort to use an Executive Order to overturn birthright citizenship, which was established by the 14th Amendment, is patently unconstitutional. A president cannot amend the Constitution via Executive Order.

Another example is Trump’s recent attempt to suppress votes via Executive Order. The Constitution vests authority over voting procedures in the various states, not the federal government.

To the extent that any Executive Order applies to matters outside the purview of the Presidency and Executive branch, they are not enforceable.

Sheila Suess Kennedy, J.D.