During his first two weeks in office, President Donald Trump has signed nearly 40 executive orders. They cover a dizzying array of policy areas --from immigration to public school -- and many of them have already been challenged in court. The orders have impacted all of our lives, and, constitutional or not, the damage that some of these orders threaten to do is real.

But can President Trump actually carry out the policy plans outlined in his executive orders? Below, the ACLU explains the history, function, and limits of a presidential executive order.

Article II of the Constitution vests the president with executive power over the government, including the obligation to “take care that the laws be faithfully executed.” An executive order is a written directive, signed by the president, that orders the government to take specific actions to ensure “the laws be faithfully executed.” It might mean telling the Department of Education to implement a certain rule, or declaring a new policy priority. Executive orders, however, cannot override federal laws and statutes.

Statutes have to be passed by Congress and signed by the president. Or, if vetoed, then Congress must override the veto for the bill to become law. Executive orders can’t preempt this process. Furthermore, the Constitution gives Congress control over things like taxation, spending, and certain war powers. Most things we think of when we think of laws come from Congress: what counts as a criminal offense, how much the federal government can tax our income, and declaring war or making treaties.

With an executive order, the president can’t write a new statute, but an order can tell federal agencies how to implement a statute. For example, Congress can declare a certain drug legal or illegal. But with an executive order, the president can tell the Department of Justice if prosecuting certain drug cases is a priority or not.

With an executive order, President Trump can order the federal government to take any steps that are within the scope of the constitutional authority of the executive branch, and do not violate any federal law.

The Constitution has a set of checks and balances written into it so that no one branch of the government is more powerful than the other. The president can’t use an executive order to sidestep those checks and balances, and the president can’t take over powers from other branches, such as the power vested in Congress to pass new statutes or in the courts to invalidate certain laws as unconstitutional.

Some executive orders take effect as soon as the president signs the order. But many other orders do not have any impact until a government agency takes some additional steps. Very often, an executive order requires a federal agency to write a report, undertake an investigation, or promulgate a new regulation. Those steps can often take months, and sometimes years. The order may provide a deadline (like telling an agency it has 60 days to make a certain recommendation for action), but it doesn’t have to.

Those checks and balances provide a few ways that an executive order can be stopped:

• Congress can enact a law that reverses what the president has done, provided Congress has the constitutional authority to legislate on the issue
• A court can hold that an executive order is unlawful if it violates the Constitution or a federal statute
• Any future president can issue a new executive order that rescinds or amends the earlier executive order

Every single president, from George Washington to Donald Trump, has issued executive orders. Most modern presidents issue hundreds of them during their presidency. While some executive orders are pretty mundane, such as declaring a federal holiday or a day of mourning, others have been among the most important actions the United States government has ever taken.

Abraham Lincoln used an executive order—the Emancipation Proclamation—to address slavery during the Civil War. Franklin Delano Roosevelt issued an executive order to integrate the shipyards and other military contractors. Harry Truman signed an executive order to integrate the military. Lyndon Johnson used an executive order to impose civil rights obligations on all federal contractors. More recently, Joe Biden signed an executive order to require every federal agency to find ways to facilitate voter registration.

But some of the federal government’s worst actions also came via executive order. Roosevelt, for example, used an executive order to force the relocation and internment of Japanese Americans to concentration camps. And in his first week of his second presidential term, Trump used an executive order to rescind Johnson’s historic executive order requiring government contractors to comply with civil rights obligations

Trump, or any president, is misusing executive order authority if the president orders the government to take actions that are not authorized by the Constitution or are in violation of federal laws. That’s when the courts must step in to safeguard our rule of law. However, an executive order can be lawful and still cause harm, especially when it threatens important civil liberties or civil rights.

President Trump’s order rescinding Johnson’s order concerning civil right obligations of federal contractors, for example doesn’t overrule any statute that governs equal protection in employment. Even so, it undermines civil rights protections and sends the signal that federal contractors won’t have the same obligation to protect their employees, and it communicates to the public that equal protection is not a priority.

Executive orders can be an effective way to carry out policy while staying within the rule of law. However, as we’ve seen with the Trump administration, they can also cause chaos, damage the democratic process and harm our must vulnerable communities. At the ACLU, we have more than 100 years’ experience holding powerful entities, like the executive branch, to account. Already during this administration, we’ve explained how Trump’s most recent executive orders rolling back DEI efforts, attacking birthright citizenship and targeting trans people are unlawful. We’re continuing to advocate and fight whenever President Trump uses executive orders to attack our civil liberties and civil rights.

One of Daishi Miguel-Tanaka’s earliest memories is walking into his first grade class in California and being struck by how diverse the student body was.

“I saw kids of all shapes and colors holding their hands over their hearts [saying the pledge] under the American flag,” Miguel-Tanaka recalls. “That was huge for me. I fell in love with this country and I wanted to stay for the rest of my life.”

Miguel-Tanaka was born in Japan to a Japanese father and Filipina mother. His family faced discrimination for being mixed race and, in hopes of finding greater opportunity elsewhere, immigrated to the U.S. Miguel-Tanaka’s grandfather was already a U.S. citizen living in California and his family looked forward to being reunited.

Even without knowing much about America, Miguel-Tanaka dreamed of going to Harvard and becoming a lawyer. “My parents remembered me, as a young child, telling them I wanted to go to Harvard. I wanted an American education because America is a land of opportunity.”

Miguel-Tanaka’s family arrived in the states in 2004 when he was just six years old. They applied for a family reunification visa, which allows certain family members of U.S. citizens and lawful permanent residents to reside in the U.S. and become permanent residents. While his family eagerly awaited updates on their immigration status, Miguel-Tanaka enrolled in school and immersed himself in all that America had to offer. But even as he excelled, quickly learning English and connecting with the larger immigrant community in California, his family’s immigration status always loomed large, like a shadow blanketing their new life.

“There were a lot of things that went unspoken [as an undocumented person], like the fact that we can’t travel outside the country or apply for the same jobs or opportunities,” Miguel-Tanaka says. “[My community] was really close because no one [who wasn’t an immigrant] quite understood how our immigration status affected us.”

At the time Miguel-Tanaka’s family applied for a reunification visa, there was a 25-year wait. While caught in that backlog, Miguel-Tanaka’s grandfather passed away and they lost eligibility for the family reunification visa. His family made the difficult decision to stay in America and become undocumented. While attempting to get a green card, his parents worked back-breaking jobs at nursing homes for pennies. Miguel-Tanaka remembers seeing his mother cry when her paychecks were withheld and she had no ability to fight back. His father, who took on driving responsibilities in the family, was not able to obtain a legal license. Miguel-Tanaka worried every time his father got behind the wheel that he’d be stopped and deported.

“It was just this constant anxiety,” Miguel-Tanaka says. “It was mentally and emotionally challenging to watch my parents struggle. I worried I wouldn’t be able to afford college or attend a university of my choosing.”

When Miguel-Tanaka was a teenager, the Obama administration introduced the Deferred Action for Childhood Arrivals program (DACA), an executive order that provides protection from deportation for undocumented people who were brought into the U.S. before the age of 16. DACA allowed Miguel-Tanaka to live out his childhood dream. He graduated from Harvard in 2019 and became the first in his family, and his high school, to get a degree from an Ivy League university.

While DACA allowed Miguel-Tanaka to chase his version of the American dream, its procedure and political volatility meant that his family was torn in two. “My parents made the difficult decision to self-deport and return to Japan for needed medical care,” Miguel-Tanaka says. “We were separated for seven years.”

Today, as one of just a few Japanese DACA recipients, Miguel-Tanaka is concerned about the Trump administration’s recent announcement that it would use the Aliens and Enemies act to deport people. That same act was used to intern Japanese Americans during WWII. When he thinks about how to channel his fear into hope, he thinks again about his parents and how watching them struggle has inspired him to find better ways to protect people.

“I’ve seen so much opportunity for positive change. I’ve seen people step up and organize. I’m really grateful to be part of the experiment, to constantly improve and provide equitable rights,” Miguel-Tanaka says.

Today, Miguel-Tanaka is the director of Immigration Policy & Research at FWD.us, a bipartisan advocacy organization focused on expanding protections for the undocumented, particularly DACA recipients. While a big part of his work is helping local governments and advocates combat immigration policies that negatively impact communities, his work is not purely reactive. There’s so much room, he says, to start building a positive, affirmative vision on immigration to counter the harmful policies the Trump administration has proposed.

“What is an alternative to mass deportation? What is the alternative to eliminating asylum?” Miguel-Tanaka asks, voicing the questions he’s focused on in his work. “At FWD, I talk to mayors and other stakeholders about how we can build our own power. I’m fortunate to work with people who want to fight back in spite of the political fallout.”

Finding state and local officials who are willing to engage proactively and positively on immigration gives Miguel-Tanaka hope that the work can focus less on the scare tactics coming out of the White House, and more on neighborhoods and communities.

“My parents have raised me to believe I can make a difference,” Miguel-Tanaka says. “‘Daishi’ actually means ‘great history.’ To me that means pursuing ambitious goals that help immigrants and my community.”

Our series, Behind the Fight for Our Rights, asks individuals defending our freedoms how they’re thinking about the next four years. Below, Miguel-Tanaka shares insight into his life – both professional and personal – under the Trump administration.

ACLU: What are you most looking forward to in the next four years? What gives you hope?

MIGUEL-TANAKA: What gives me hope is that we can increase attention toward what is happening in neighbourhoods and communities to focus immigration policy where it starts: with families at the dinner table.

ACLU: What is the biggest challenge you’re expecting in the next four years?

MIGUEL-TANAKA: Fear. Many public servants that I work with are afraid to speak up against the Trump administration and put a target on their backs. Trump has already talked about taking sanctuary cities hostage in exchange for cooperation with deportation efforts. So fear is a real challenge and I believe that hope is the counter to that fear.

ACLU: What do you wish people knew more about the fight for immigrants’ rights?

MIGUEL-TANAKA: I wish more people realized that debates about immigration span decades. Immigration can’t be a contemporary policy challenge, just like it can’t be isolated from our legacy of racism and xenophobia.

ACLU: What is one thing you wish you knew about the fight for immigrants’ rights?

MIGUEL-TANAKA: I really want to learn more about innovative models around employment. One of the biggest challenges we have right now are the millions who will lose work authorization. I want to know more about innovative, independent contracting models, cooperative models that open up new areas of opportunities for immigrants to sustain themselves and families.

A bill that would have required the president to sanction the International Criminal Court (ICC) has failed in the Senate. It may return, or President Donald Trump may unilaterally impose sanctions on the ICC, as he did in his first administration. Either result would raise serious constitutional concerns and deal a grave blow to human rights accountability, including investigations the United States has supported.

The ICC is an independent court established to help maintain international peace and security. It investigates and prosecutes crimes of the severest magnitude, including genocide, crimes against humanity, and war crimes, when domestic courts are unwilling or unable to do so. In November 2024, the ICC issued arrest warrants for senior officials of Israel, including its Prime Minister, and Hamas. In response, some members of Congress introduced the “Illegitimate Court Counteraction Act,” a bill instructing the president to sanction any “foreign person” who helps the ICC to “investigate, detain, or prosecute” citizens or lawful residents of the United States or certain allied nations. Under the bill, even providing “technological support” or “indirect” assistance to a targeted ICC investigation would be sanctionable.

As a U.S.-focused human rights and civil liberties organization, the ACLU takes no position on the ICC’s arrest warrants, but we are deeply concerned that the impact of sanctions would violate the Constitution and undermine the independence of the court.

The ICC reflects an international consensus dating back to the post-WWII Nuremberg Tribunal: the world needs an independent judicial body to prevent impunity for unconscionable crimes, protect the rights of victims, secure the due process rights of the accused, and ensure the sovereignty of individual nations. Today, the ICC’s work includes investigations of alleged mass atrocities committed in Ukraine, Venezuela, Sudan, and by the Taliban. Many allies of the United States have adopted legal obligations requiring them to cooperate with the ICC.

Sanctions are an extraordinarily powerful tool usually aimed at people who have committed serious crimes and groups that are a threat to U.S. national security. Their impact can be devastating. For example, people and entities sanctioned under the ICC bill would have their assets frozen, and they and their immediate family members would be barred from entering the United States, notwithstanding pre-existing visas. These measures would severely undermine all ICC operations, not only the ones the legislation claims to target.

Moreover, if the bill becomes law, U.S. citizens and residents could be prohibited from meaningfully participating in any of the ICC’s investigations and work. When someone is sanctioned, it is generally against the law for anyone—including people in the United States—to work with or for them. The penalties for doing so can be extremely harsh. Even accidentally violating a sanctions prohibition may be punished by hundreds of thousands of dollars in fines.

In other words, if the bill becomes law, people in the U.S. who’ve devoted their lives to seeking justice for the victims of atrocities could face stiff penalties simply for exercising their constitutional right to speak with the ICC, such as providing the ICC with legal advice, guidance, or research support across a range of its activities. The First Amendment does not allow the government to impose such sweeping limits on what Americans can say, and to whom they can say it.

In 2020, when President Trump imposed similar sanctions, the ACLU sued on behalf of human rights experts who were forced to stop working with the ICC. Our clients withdrew their lawsuit when President Joe Biden rescinded the sanctions, but a federal court in a separate suit agreed the sanctions likely violated the First Amendment.

The Senate was right to stop the bill this week. It should never come back. Legislators who disagree with the ICC must find a way of doing so that respects the Constitution and does not compromise the ability to bring the perpetrators of mass atrocities to justice.