The Curious Evolution Of The Executive Order

On January 27, 2017, barely a week into office, President Donald J. Trump issued Executive Order 13769 for the stated purpose of "Protecting the Nation from Foreign Terrorist Entry into the United States." Both vigorously defended as "a measure . . . focused exclusively on . . . the safety of American citizens" and broadly denounced as an "unlawful . . . . attempt to discriminate against refugees on the basis of religion," the order has raised important questions about the scope of Executive power. It also has revealed several fundamental misunderstandings about the function of American government.

First, Executive Orders are normal; they do not flout the separation of powers that is foundational to our Constitutional order. Every single American president, save one, has issued them. The lone exception is William Henry Harrison, who died one month after assuming office. Lest you persist in thinking Executive Orders inherently pernicious, consider that President