Let’s start at the beginning with the U.S. Constitution.

ARTICLE I
Section 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

ARTICLE II
Section 1. The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years…together with the Vice President…

ARTICLE III
Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.

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So, to ensure a separation of powers, the U.S. Federal Government is made up of three branches: legislative, executive and judicial. To ensure the government is effective and citizens’ rights are protected, each branch has its own powers and responsibilities, including working with the other branches.

The legislative branch is made up of the House and Senate, known collectively as the Congress. Among other powers, the legislative branch makes all laws, declares war, regulates interstate and foreign commerce and controls taxing and spending policies.

The executive branch consists of the President, his or her advisors and various departments and agencies. This branch is responsible for enforcing the laws of the land.

The judicial branch consists of the U.S. Supreme Court and the Federal Judicial Center. According to the Constitution, “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The Federal Judicial Center is the education and research agency for the federal courts. [1] 

“It is important, likewise, that the habits of thinking in a free Country should inspire caution in those entrusted with its administration, to confine themselves within their respective Constitutional Spheres; avoiding in the exercise of the Powers of one department to encroach upon another.”- George Washington, farewell address (September 19, 1796)

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Separation of powers and checks and balances – what exactly does this mean?

The Constitution does not expressly stipulate boundaries between the three branches, nor does it specify a process for checks and balances. Yet, it does grant to the three separate branches the powers to legislate, to execute, and to adjudicate, and it provides throughout the document the means by which each of the branches could resist the flatteries and incursions of the others.

The doctrine of separation of powers was based on several principles generally held: the separation of government into three branches, legislative, executive, and judicial; the conception that each branch performs unique and identifiable functions that are appropriate to each; and the limitation of the personnel of each branch to that branch, so that no one person or group should be able to serve in more than one branch simultaneously. To a great extent, the Constitution kept to these principles, but there was criticism to it. Critics objected to what they regarded as a curious intermixture of functions, to, for example, the veto power of the President over legislation and to the role of the Senate in the appointment of executive officers and judges and in the treaty–making process.[2]

So How Are Laws Made?

Laws begin as ideas. First, a representative sponsors a bill. The bill is then assigned to a committee for study. If released by the committee, the bill is put on a calendar to be voted on, debated or amended. If the bill passes by simple majority (218 of 435), the bill moves to the Senate. In the Senate, the bill is assigned to another committee and, if released, debated and voted on. Again, a simple majority (51 of 100) passes the bill. Finally, a conference committee made of House and Senate members works out any differences between the House and Senate versions of the bill. The resulting bill returns to the House and Senate for final approval. The Government Printing Office prints the revised bill in a process called enrolling. The President has 10 days to sign or veto the enrolled bill.

What is The Executive Order? Is it a law?

The U.S. Constitution does not have any provision that explicitly authorizes the use of executive orders. In Article I Section 1 of the Constitution, it is clear that all legislative powers reside in Congress. The executive branch is responsible for executing the laws passed by Congress. So an executive order is not strictly legislation.

Executive orders do not require congressional approval. Thus, the president can use them to set policy while avoiding public debate and opposition. Presidents have used executive orders to direct a range of activities, including establishing migratory bird refuges; putting Japanese-Americans in internment camps during World War II; discharging civilian government employees who had been disloyal; enlarging national forests; prohibiting racial discrimination in housing; pardoning Vietnam War draft evaders; giving federal workers the right to bargain collectively; keeping the federal workplace drug free; and sending U.S. troops to Bosnia. The first executive order was issued by George Washington on June 8, 1789, addressed to the heads of the federal departments, instructing them “to impress me with a full, precise, and distinct general idea of the affairs of the United States” in their fields. The most famous executive order was by President Abraham Lincoln when he issued the Emancipation Proclamation on January 1, 1863.

After the President signs an Executive order, the White House sends it to the Office of the Federal Register (OFR). The OFR numbers each order consecutively as part of a series, and publishes it in the daily Federal Register shortly after receipt. You can see the published orders at the Federal Register website here.

The U.S. Supreme Court has held that all executive orders from the President of the United States must be supported by the Constitution, whether from a clause granting specific power, or by Congress delegating this power to the executive branch. Specifically, such orders must be rooted in Article II of the US Constitution or enacted by the congress in statutes. Attempts to block such orders have been successful at times when such orders exceeded the authority of the president or could be better handled through legislation.

So the 9th Court’s decision to block the President’s travel ban is an essential and significant part of the checks and balances of the U.S. government. No one branch of government can work on its own to put forth laws or actions without the agreement of all the branches. It’s what the Framers of the Constitution intended in order to form a system of government of conferring sufficient power to govern while withholding the ability to abridge the liberties of the governed.

[1] Cornell University Law School, Legal Information Institute, Separation of Powers and Checks and Balances, Accessed: 10 Feb. 2017.

[2] IBID.