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Can Biden pass the border bill with executive powers? A law professor weighs in


President Joe Biden hit Republicans hard during the State of the Union over the stalled border bill.


PRESIDENT JOE BIDEN: This bill would save lives and bring order to the border and would also give me and any new president new emergency authority to temporarily shut down the border when the number of migrants at the border is overwhelming.

RASCOE: But the president stopped short of announcing what he might do on border security by executive order. With Congress increasingly dysfunctional, there has been more attention on what Biden could accomplish using the powers of the presidency. Let's bring in Stephen Vladeck. He's a constitutional law expert at the University of Texas School of Law. Welcome to the program.

STEPHEN VLADECK: Thanks for having me.

RASCOE: Give us a quick thumbnail here. Like, is an executive order a presidential flex, or does it depend on what the order is?

VLADECK: Sure. I mean, it's a little bit of both. So, you know, executive orders are basically the way through which presidents create rules that bind themselves, that bind folks within the executive branch, based on how the president and his subordinates are interpreting statutes, based on, basically, how they're understanding the authorities that Congress has given to the executive branch. And so, in one sense, it's just a president saying, hey, Congress, you told me to do X. Here's how I'm going to do X. But in another sense, you know, there's a lot of discretion.

RASCOE: So how have President Biden and former President Trump used executive orders in the past?

VLADECK: I mean, so at least in the immigration context, which might be the most helpful area where we've seen a lot of activity from both of them, you know, we've seen executive orders dealing with changes to asylum protocols. President Trump, at various points during his administration, tried to basically all but eliminate asylum. You know, President Biden and President Trump both had executive orders dealing with what to do about COVID at the border and how that would change immigration authorities. So, you know, we've seen them both trying to fill gaps that have been left by Congress' inaction in this space, really now for the better part of four decades.

RASCOE: How do executive orders have to hold up when it comes to the law and to the interpretation of the law?

VLADECK: The question for the courts very often is, at least first, is the president's interpretation of the statute a legitimate one? So, for example, with President Biden's student loan debt forgiveness program, you know, the ground on which the Supreme Court ultimately struck it down was the Supreme Court's view that the relevant statute, the HEROES Act of 2003, actually didn't support the Biden administration's interpretation. So you know, that's one way in which these orders can be challenged.

The other way, as in the travel ban cases, is to say, well, even if you had statutory authority, what you're doing violates our constitutional rights. And so we saw that, for example, with the claims that the travel ban violated the Equal Protection Clause because it discriminated on the basis of religion, that it was an anti-Muslim ban. One of the things that has become far more common over the last couple of years is that these challenges are coming, you know, within hours sometimes, certainly days of every new significant executive order. And they're being brought in parts of the country where the challengers are able to basically steer the challenge to, you know, judges who are going to be especially sympathetic.

RASCOE: An issue when you do an executive order is that they are easily overturned by a future administration. They don't have the teeth or the lasting nature of a law. Isn't that the case?

VLADECK: I mean, they have the same force as a law, but yes, I mean, they maybe are less entrenched. So, you know, if Congress were to pass a statute, it would take a new statute to override the old statute. And, you know, that means both chambers of Congress and the president.

RASCOE: Can we step back a bit and see, like, what are some key examples from the past where presidents have tested the limits of their powers via executive order?

VLADECK: Sure. I mean, one of the most famous examples, at least, that we teach in law school came during the Korean War, when president Harry Truman seized all of the steel mills across the country because the sort of - the impending strike of steel workers threatened to imperil steel production in the middle of a war. The Supreme Court struck that down.

You know, there are examples of the courts being really deferential to incredibly important executive actions - for example, you know, the agreements through which President Jimmy Carter ended the Iranian hostage crisis. But, you know, it's really in areas of significant federal regulation where, you know, Congress has passed these big statutes but then has largely sat on the sidelines in, you know, implementing them, in updating them, in modernizing them so that as time has gone on, as we've gotten further and further away, you know, we have agencies that are trying harder and harder to address contemporary problems with old statutes.

RASCOE: What can we learn about how future executive orders, you know, say, from Biden, might fare in federal courts, given what we know about their previous rulings?

VLADECK: At least for the time being, what we're going to see and what we ought to expect is, you know, federal courts really exercising their own judgment about whether they think that the executive branch is, you know, properly or not properly interpreting these statutes. And so what that's going to mean is, you know, every time, whether it's President Biden, whether it's the next Republican president - every time they issue a new executive order, the argument's going to really reduce to whether the federal courts in general and the Supreme Court in particular are on board with that particular interpretation of that particular statute.

RASCOE: That's Stephen Vladeck. He's chair in federal courts at the University of Texas School of Law. Thank you so much for being with us.

VLADECK: Thanks for having me. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Ayesha Rascoe is a White House correspondent for NPR. She is currently covering her third presidential administration. Rascoe's White House coverage has included a number of high profile foreign trips, including President Trump's 2019 summit with North Korean leader Kim Jong Un in Hanoi, Vietnam, and President Obama's final NATO summit in Warsaw, Poland in 2016. As a part of the White House team, she's also a regular on the NPR Politics Podcast.