Q&A: Can Congress and courts still check Trump's executive overreach? (Part One)

From tariffs to trade, and from birthright citizenship to immigration and border security issues, U.S. President Donald Trump signed over 150 executive orders in just over four months since his inauguration on January 20, 2025, according to the Federal Register, the official journal of the U.S. government. By comparison, his predecessor, Joe Biden, signed 162 executive orders during his entire four-year presidency.

To make sense of Trump's aggressive use of executive orders and its possible impact, CGTN interviewed Mitchel Sollenberger, a political science professor at the University of Michigan-Dearborn and author of four books examining the reach and limits of U.S. executive powers, and David Super, a law and economics professor at Georgetown University Law Center, whose research focuses on U.S. administrative law, constitutional law, legislation and others.

Trump is aggressively using executive orders across multiple policy areas without seeking congressional approval – a level of unilateral executive action unprecedented in U.S. presidential history, said Sollenberger. Trump's method of governance is changing the U.S. from a constitutional system of three co-equal branches of government to a strong presidential system, said Super.

Below is the first part of CGTN's two-part interview via email with the two U.S. scholars. The conversations have been lightly edited for clarity and conciseness.

CGTN: President Trump has issued executive orders covering trade, tariffs, birthright citizenship, immigration, border security and other issues, seemingly establishing this as a routine governance approach that largely bypasses substantive congressional debate – a method dubbed "governing by executive orders" by some. What is your assessment of this phenomenon?

Mitchel Sollenberger: I think many U.S. citizens and people around the world likely find it surprising that presidents can unilaterally issue executive orders. However, the concept of presidents taking direct action by decree is not new and dates back to the presidency of George Washington. Although executive orders can be controversial, their use has been seen by Congress and the courts to be legitimate. In fact, various federal laws require presidents to issue executive orders in order to provide clarity around certain policies.

However, I think the question gets to a point about the number of executive orders Trump has issued compared to his predecessors. I haven't seen the last count of executive orders by President Joe Biden, but I believe it is true Trump has issued more than Biden (compared to Biden's last year in office or even his first year in office).

But the mere counting of executive orders doesn't properly tell the story of what's happening under Trump. Past presidents issued a great deal of executive orders. For example, Franklin Roosevelt issued over 300 executive orders in one year. He routinely issued over 200 executive orders over multiple years. Likewise, Harry Truman issued a great number of executive orders (134 in 1945, 134 in 1946, 98 in 1947, 100 in 1948, etc.). My point is that the trend line for executive orders didn't start with a few with early modern presidents and increased until we got to Trump. In fact, the numbers declined under Eisenhower and after that have fluctuated from president to president till Trump.

I think a better way to look at executive orders is to focus on their context, not quantity. And if you take the content-based approach with Trump, one would likely come away seriously concerned about the nature of the policies the administration has pushed using executive orders along with the extent to which the administration has attempted to expand presidential power. Certainly past presidents have issued controversial executive orders that have expanded their power. President Truman did so in 1952 when he ordered the seizing of the nation's steel mills. President George W. Bush issued an executive order in 2001 creating military commissions. However, unlike Truman and Bush, Trump is using executive orders on so many fronts and doing so aggressively without either seeking congressional approval or fighting the courts as the result of lawsuits. I don't believe we have seen anything like this in the history of the presidency.

David Super: President Trump's executive orders are quite different from one another. A few have actual legal effect, such as those on birthright citizenship and tariffs. Most of them have little practical effect but rather are efforts to shape the political debate in this country.

If one reads those executive orders carefully, they do not purport to change anything in the way the government is administered. For example, his executive order purporting to make English the official language of the U.S. explicitly says that nothing should change. The major changes have come as a result of actions and orders by subordinate officials that are not compelled by any executive order.

This nonetheless fundamentally changes this country's method of governance. Many of these executive actions flatly contradict laws enacted by Congress. Other initiatives likely exceed the executive branch's authority in the absence of congressional authorization. This is changing the U.S. from a constitutional system of three co-equal branches of government to a strong presidential system.

CGTN: According to a U.S. legal research institution, the Trump administration has faced over 200 domestic lawsuits since January 20. How do you interpret this situation?

Mitchel Sollenberger: I think the number of lawsuits goes back to my point about the breadth of unilateral executive actions President Trump has taken in so many areas. Your first question listed "trade, tariffs, birthright citizenship, immigration, border security and other issues," which really serves as a nice frame for understanding the scope of policy areas Trump has sought to impact via executive orders.

Again, it isn't just that he's issuing executive orders in these areas; it is the way he's doing so, which is to press the outer boundaries of the conventional understanding of the Constitution and law. For example, on the tariff front, Trump is the first president to use the International Emergency Economic Powers Act to justify issuing across-the-board tariffs. The same goes for his attempts to cut government spending and eliminate government offices. Trump unilaterally created DOGE and is using it to undertake a comprehensive assessment of government spending. Sure, past presidents have created commissions to look at government spending, but DOGE is not only assessing spending but cutting it (including the firing of employees) at the same time.

So with such unprecedented and legally questionable actions, it is not surprising we have seen so many lawsuits. The confrontation between the presidency and the judiciary is therefore a natural result of Trump's aggressive and unilateral actions.

My interpretation of the situation is that we are seeing the implications of decades and decades of the expansion of presidential power by Trump's predecessors and an individual in the presidency who is willing to pull all the power levers available to him, along with creating some new ones. This situation was born out of the sins of many individuals and institutions, including Congress and the judiciary. Certainly past presidents expanded their powers, but Congress delegated away much of its own institutional powers to the president, and the judiciary has famously ceded a great deal of ground to the presidency in such areas as foreign affairs and removals. All of those past actions have weakened the traditional checks and balances that the framers of the Constitution created and which largely persisted through the early twentieth century.

David Super: News accounts report that the Trump administration officials often do not consult lawyers before implementing radical changes in government operations. Many of these changes are plainly illegal. Courts typically try to avoid interfering with executive branch decisions, but these administration actions have given them little choice.

President Trump holds a 6-3 majority on the Supreme Court and has appointed many lower-court judges, so the courts have tried to avoid breaking with him. Many of his actions have so defied our Constitution that the courts have had little choice. We do not yet have a full sense of whether the Supreme Court will attempt to rein in President Trump's unlawful actions, particularly his defiance of court orders.

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Q&A: Can Congress and courts still check Trump's executive overreach? (Part Two)