President-elect Donald Trump’s first term is expected to start with a flurry of executive orders, starting shortly after he’s sworn in.
Exactly what those orders will contain is hard to know for sure right now. But executive orders — policy proclamations issued by the president under their executive authority — will likely be a powerful tool through which Trump can quickly and unilaterally enact key parts of his agenda.
That’s because executive orders can help him circumvent Congress, where Republicans currently have the narrowest majority in the House in 100 years and they still need at least seven Democrats to pass most legislation in the Senate. There are limits to what he can accomplish via executive order, and some of his agenda requires legislation to implement, especially if it demands new appropriations (which Congress controls). But just as in his first term, Trump can quickly undo major pillars of his predecessor’s legacy via executive order as he has promised.
Executive orders played a key role in the chaotic start to Trump’s first term eight years ago, which began with several high-profile executive orders, including a travel ban on citizens of seven Muslim-majority countries and the withdrawal from a major multilateral trade agreement known as the Trans-Pacific Partnership (TPP).
Many of these efforts were challenged in court by Democratic states and left-wing advocates, often successfully. Trump did win several of these battles, however, sometimes expanding the bounds of presidential power.
It’s not yet clear what Trump will try to do this time — or if courts will react the same way. But looking back could help understand what’s ahead.
The beginning of Trump’s first term was marked by an onslaught of executive orders
Trump’s first week in office in 2017 featured five splashy executive orders, including several that sparked years-long litigation:
- The travel ban, which caused chaos at US airports in the days right after implementation, was initially blocked in court as discriminatory and then revised several times. The Supreme Court ultimately upheld a version of the ban that blocked citizens from five Muslim-majority countries, as well as Venezuela and North Korea on national security grounds.
- A declaration of a national emergency on the border, under which he claimed the authority to redirect $6 billion in military funds to begin construction on the southern border wall, a centerpiece of his 2016 campaign. Several federal courts ruled that he had no such authority to use funds appropriated by Congress for other purposes, but the Supreme Court allowed him to move forward with it.
- A decision to green light the controversial Dakota Access and Keystone XL pipelines during his first week in office, which also faced legal challenges. Courts found that the projects did not undergo sufficient environmental review, and President Joe Biden later rescinded their approvals.
- An executive order cracking down on so-called sanctuary cities, which refused to allow local law enforcement to share information with federal immigration agents or hand over immigrants in their custody from receiving federal law enforcement grants. The order was challenged in court, but the Supreme Court never reached a final decision on it.
A number of Democratic state attorneys general sued, but after Trump lost the 2020 election, the Supreme Court dismissed the case. Without any settlement on the legality of the order, Trump could again try to withhold funding from sanctuary cities and re-litigate the issue.
Only one of Trump’s initial executive orders was never challenged in court. His decision to exit TPP, former President Barack Obama’s signature trade deal between 12 nations, was clearly within his rights as president and never faced litigation.
What we know about Trump’s executive order strategy going forward
“Look, I can undo almost everything Biden did, through executive order,” Trump told Time in November. “And on Day One, much of that will be undone.”
His advisers — many of whom have spent the last few years contemplating what he could achieve via executive order at conservative think tanks like America First Legal and the Heritage Foundation — are more prepared than they were during his first term. Heritage’s Project 2025 lays out a blueprint for a potential policy agenda, and some of its authors and editors have since joined the administration.
At least some of Trump’s Day One executive orders are bound to be tied up in the courts, just as they were last time. One potential thorn in his side may be a revival of a liberal resistance.
This time around, the Democratic response to Trump’s plans has been more muted. But a group of former Biden-Harris officials in collaboration with the legal organization Democracy Forward are gearing up to challenge Trump’s initial executive orders in court and turn public opinion against him. In addition to Democracy Forward’s efforts, the ACLU and other legal organizations are preparing to inundate the new Trump administration with litigation.
Still, some of his executive orders are also bound to pass legal scrutiny, especially after Trump stacked the federal courts with friendly judges. Though legal scholars may argue that some of his proposals (such as ending birthright citizenship unilaterally) are patently illegal, what the courts may be willing to permit is anyone’s guess.
Just as in his first term, Trump is planning to test the limits of his executive authority.
