Clarifying the Confusion: Executive Orders vs The Courts

Clarifying the Confusion: Executive Orders vs The Courts

Feb. 13, 2025

Host: Hon. Sam Rohrer

Guest: David New

Note: This transcript is taken from a Stand in the Gap Today program aired on 2/13/25. To listen to the podcast, click HERE.

Disclaimer: While reasonable efforts have been made to provide an accurate transcription, the following is a representation of a mechanical transcription and as such, may not be a word for word transcript. Please listen to the audio version for any questions concerning the following dialogue.

Sam Rohrer:

Hello and welcome to this Thursday edition of Stand In the Gap Today, and it’s also our bimonthly constitution and American history focus with constitutional attorney, author, historian, and public speaker David New. Now since the January 20 inauguration of Donald Trump is the 47th president of our nation. According to the Federal Register, which is the place of all official documents are put there, federal Register as of this morning of this podcast today, 67, they’re saying executive orders have been duly signed and recorded, beginning at number EO executive order 1 4 1 4 7 through executive order 1 4 2 0 6. These are all by the current president. 37 of them were literally signed on Inauguration Day kicking off what has already becoming an historic second term. Now, according to the NPR article, I’m just going to read it from them. It said President Trump promised to do a lot right from the start of elected, and he certainly did that.

They go on to say during his first week in office, Trump signed dozens of executive orders affecting everything from immigration, climate change and oil exploration to health and medical research, as well as eliminating federal diversity programs, directives, defining gender, and much, much more. Now, I just read what they said because it was pretty succinct and it was pretty accurate. Now, comprehensive policy change is taking place. We know we’ve talked about it on this program multiple times at historic speeds, and it’s literally impacting every federal program, every federal department leaving untouched, literally no person living in America, be they a citizen or a person living here illegally. It’s comprehensive what is happening, but changes resulting from signed executive orders are not just domestic, but many of these are literally affecting the globe, other nations. So while the impact of change created by the 67 to date executive orders actually sign in some ways is historic, more so because of I would say the surgical focus of them, the quantity is not really historic.

For instance, the average for the last 10 presidents, Nixon, Ford, Carter, Reagan, Bush One, Clinton, Bush two, Obama, Trump 45, and Biden, the average has been an average of 266 executive orders signed per term. Now, by the end of this Trump term, the total might reach the all time high, which was 381 during the two terms of Ronald Reagan. Now Trump has his first term and to date signed 287, which is somewhere in the middle. We’ll find out what the next few years bring, but because of the strategy and the policy focus Donald Trump is making through the issuance of executive orders, we’ve heard a lot in the last week or two about US district courts declaring various executive orders or actions or other presidential directives made by the president to be unconstitutional, the vice president and Elon must claim us. District courts do not have the authority to tell the president what he can do within the executive department of the United States.

Musk has even said that these US District court judges should be impeached and removed from the bench. But here’s the question, do the courts possess the authority to order the president as head of the federal executive branch in his efforts to make such sweeping policy changes as we’re witnessing now at the moment, there’s a great deal of confusion on this matter. Today we’re going to try and clarify this confusion. The title I’ve chosen to frame today’s conversation as this clarifying the confusion executive orders versus the courts, and we’re going to discuss executive orders from a constitutional perspective, what they are, their purpose, their scope, and their limitations. With that, David New welcome on a really relevant topic.

David New:

Blessings to everyone. It’s so nice to be with you

Sam Rohrer:

David. Let’s just start here like we always do. Let’s lay the foundation and build from that definition, what exactly is an executive order. Fill this in as well. When did the use of executive orders begin in our nation? What was their original purpose? What’s the source of authority or executive orders actually established within the constitution? So speak broadly to it, but lay down the foundation. What is it and when did it come about and why?

David New:

Well, let me read this definition. An executive order is a written directive issued by the president of the United States that instructs federal agencies and executive branch staff to take specific actions, essentially acting as a policy directive with the force of law based on the president’s existing constitutional powers and without requiring congressional approval. It is published in the Federal Register and can be revoked by the president at any time. Executive orders are as a subject, is not directly covered in the Constitution. You will not find the word executive order in the Constitution, but their power comes from the fact that the president is the chief executive of the United States. So an executive order is a derivative power of the fact that the president is an executive. So it’s the same as if for a corporation the president of GM can issue executive orders to his subordinates or her subordinates throughout the company. Any executive has the power to issue executive orders. They may not call them that, but that’s effectively what they are.

Sam Rohrer:

Okay. David, you have there as an historian hat and constitutional attorney, I don’t have it in front of me right now, but when did the concept begin? I mean, is this something that George Washington came up with or do you have it in front of you? When in the process of US government did the concept of executive orders begin? Do you have that information?

David New:

Yes. George Washington issue, the very first one on June 8th, 1789, which is very interesting because that’s the same day that James Madison submitted what would become the Bill of Rights and the Congress of the United States. George Washington during his two year term issued a total of eight executive orders. Now that means he can order his people to do certain things or refrain from certain things because they report to him and this is why it does not require congressional approval. Now, executive orders to start dealing with the numbers, John Adams won. Thomas Jefferson issued four during his presidency. James Madison won and it pretty much was a limited number, basically fairly small. Then it goes from, and then you lease these grant issued 217. So he was out of step with most of the presidents because they issued very, very few where breaks out big time was under Theodore Roosevelt. He issued 1081 executive

Sam Rohrer:

Board. Okay, wow. Okay. All right. That’s great David, ladies and gentlemen, again, the theme today is clarifying the confusion, executive orders versus the courts. David New is with me today and when you come back, we’re going to talk now about the courts. Well, if you’re just joining us today, David New is my guest today. I know a lot of you like it when constitutional attorney, David New is with me on this program, we do it every other Thursday. General direction is the Constitution, constitutional issues, and always some element of American history thrown into that. And today we’re looking at an issue that has really been forward in front and center in all of the news that’s been swirling around us this year and it revolves the use of executive orders, presidential directives. So we covered and defined that in the first segment and want to now move into some other things and build it out.

We’re ultimately going to end up in the end of the program talking about, all right, well in the end or executive orders in the use of them, well a threat to freedom or a benefit to freedom end up going there. So you have an idea, David, in the last segment in talking about executive orders, I said when did they begin and you said George Washington and he had eight, but then you made a statement about Theodore Roosevelt as being the first, it was like a thousand that he had signed was a breakout session. Let’s just visit that just briefly before we go into the matter of the courts, which is part of the controversy today. Did Theodore Roosevelt actually do the most or did you pick him out just because things changed at that point? And just for the sake of information for people factoids who actually over time have which present has issued the most executive orders.

David New:

The reason why Theodore Roosevelt is important, he issued 1081 executive orders, is that he is the breakout. He’s when executive orders start to really take off, before him there was like 200 or less and the 200 was with Grant. Most of them were like around a hundred for just about all the presidents were like around a hundred or less. So Theodore Roosevelt really starts big time using them, but the all time winner would be Franklin Delano Roosevelt. He issued 3,721 executive orders and of course he was president the longest, but still his number even on an average basis was higher than anybody else. It’s interesting that Ulysses Grant issued 217, which was less than the number of JFK who issued 214. So that was kind of interesting that a president from the past and Ulysses Grant was the highest of all those before Theodore Roosevelt even. He listed some more than JFK did. So that was kind of interesting.

Sam Rohrer:

Yeah, it is. And ladies and gentlemen, that’s part of the interest of history. It helps to put things in perspective. So thanks David for sharing that. For those who are remember numbers, they can pick up some of those things. Now we’re going to shift gears here now in part due to the areas of controversial policy change being affected by the recent Trump executive orders, I’m just going to give you three. Here’s one executive order, 1 4 0 6 9 reevaluating and realigning US foreign aid. That’s the whole USAID piece of the equation. Okay? EO 1 4 1 9 4. The title, official title is Imposing duties to address the situation at our southern border. That’s immigration stuff. It makes sense. You see that order 1, 4, 1 9 9, the title is Withdrawing the US and ending funding to certain United Nations organizations. That’s the WHO and others and reviewing US support to all international organizations. That all was a title.

I share that just to give you a sense, if you haven’t looked at executive orders before, how titles are written, but you sense you can tell by those why they are controversial. Now in reality, opponents of these changes, many of them have run and they are running to the federal court system to file injunctions seeking to override these executive orders and ultimately the authority of the presidential executive order. So David, we got to go to the court here now because that’s where people are going before we discuss such issues as whether the court can order the president or the president can order through CEOs. We’ll save that a bit. Do this. Would you give a brief description of the federal court system structure and where the district courts, some of which have now ruled against the Trump administration on some of these executive orders where they fit into the process. Just build that out so people can kind of get a picture in their mind how the things are supposed to work.

David New:

Sure. Very quickly though, just the key word you want to remember about executive orders is that it is inherent in the power of the president. It’s inherent authority. That’s the word you want to use. So Sam, you could issue an executive order to all the people that work in your staff. It’s the same thing. The other thing to remember about executive orders is that they are only good as long as another president doesn’t come along later and reverse them. So many of them just last the term of that president so they can be easily overturned. Okay, the federal court system, we have 94 US district courts and 13 US Circuit Court of Appeals and then of course on top of all that is the US Supreme Court. This is our court system. It’s not easy to get into a federal court to begin with because federal courts, unlike state courts have limited jurisdiction.

So there’s got to be a reason, a constitutional reason to get into a US district court so that most of them come because of it involves the federal government, a federal agency like the foreign aid type thing. When most Americans citizens get a US district court federal court, it’s because of diversity of citizen. So if you’ve got citizen A and citizen B and they’re suing each other in state court for example, and they’re not from the same state, then you can remove it to federal court. So like a citizen of New York suing a citizen of New Jersey and they’re in state court, whichever one is not a citizen of where that case is being heard can file a notice of appeal or notice of removal rather very simple document and it removes it to the federal courts, then that’s the way most people get into US district courts and federal courts.

Sam Rohrer:

Okay David? So the jurisdiction that opens the door, if it’s a state issue, you’re not going to go to a federal district court or court system. That’s one. And now here’s another part I’ve got to follow up. When a district court, as some have now already in the case of Trump executive orders, some have ruled you cannot do that. Here’s the question. Can one single US district court judge issue a ruling that binds the entire country with his single order?

David New:

That is an excellent question. There are 94 US district courts. So if one US District Court says that what the president is doing is unconstitutional, legally that ruling is limited to the jurisdiction of that single US district court, which means it’s possible that the president will obey whatever that judge said in that locality could proceed as he sees fit or she sees fit in the other 93 US district courts because they have not made such a ruling in practicality. Many times when one US district or judge says it’s unconstitutional, very frequently the president will hold off completely and treat it as if it’s binding everywhere. But he does have or she does have the option of going forward. And this becomes especially true when the US Circuit courts are not in agreement. If you have US Circuit Court one saying the law is this way and you have the US Circuit Court number five in the fifth district saying the law is this way. So you’ve got the two circuit courts interpreting the law differently and that means their district courts are going to follow accordingly. So the president may obey one but may not be necessary to obey the other, but that’s where the US Supreme Court comes in. They don’t like these circuit courts where they contradict each other and that will get you to the US Supreme Court very quickly so they can resolve the matter.

Sam Rohrer:

Okay? And so in reality in some of these cases, like a ruling that was last night, a federal union of government employees had sued in a court to stop the requested resignations and or firing of federal employees and that court threw it out telling the union they had no standing on behalf. So there are a lot of different things that can come into play at this, but David, just a short time later, but if a court rules in the case of executive order, the president can either let it sit, he can choose to selectively enforce it perhaps, but you also said what’s the ultimate remedy going to the Supreme Court?

David New:

Well, when a US District Court rules that something the president is doing is unconstitutional, the president can turn around and ask that US district judge to stay his own order pending an appeal. That’s one solution for the president. The other thing is he could just go ahead and take it to the US Circuit Court and file an appeal and get that district court judge reversed.

Sam Rohrer:

Alright, so ladies and gentlemen, there are provisions, that’s one of the great things about law or constitutional law, the court system, there are, and obviously we see people if they really know what to do, you can tie something up forever or you can get it through. But that’s a part of what we’re witnessing right now. When we come back, we’re going to answer the question, what about when a district court issues an order versus executive order? Which one actually prevailed? Alright, David, let’s continue in our discussion and ladies and gentlemen, often like we’d put together the program, kind of do it like a funnel, start at the top a little bit and then work down to specific application. And we’re going to be in specific application, but actually going to begin doing that even right now. Now David, to some extent you have answered this question, but I want to pose it in a very specific way and get a very specific answer.

Do you believe that President Trump, because that’s what we’re talking about right now, these issues of the day driving this discussion, considerations why we’re doing it. Do you believe that President Trump is bound by US District court orders? Again, you’ve already kind of answered it, but I want you to go into it deeper. Unless he can get the order stayed or reversed by a higher court, and I’m going to say this, and if he is bound, why the president is bound by the district court orders when he is in fact the head of the executive branch.

David New:

Okay, president Trump yesterday at that meeting said he was going to obey all court orders. His first term, he obeyed all court orders. Where does it say that the president, the executive, the chief executive must obey Article three court orders by US District Courts or Circuit Court of Appeals or the Supreme Court. Where does it say that? It goes back to the kind of government, the kind of legal system the United States has. The United States has what is called a common law system. We are a common law country because of the mother country Britain. Great Britain is a common law country that is different from mainland Europe. If you go to mainland Europe and you’d look at Germany and France and most of these countries and mainland Europe, they are not common law countries. They are civil law countries.

There are many differences. But what are the important differences between a common law and a civil law country is that judges and common law countries have a great deal more power, a lot more power, and that’s why they can issue orders to the President of the United States. Now, this nowhere, specifically what I’ve just said, says that in the US Constitution, but if you look at article one, section nine and the second paragraph, it gives you an example of a writ, an order, a writ by a judge to the president or his representative. It’s called the writ of habeas corpus. It says The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion, the public safety may require it. Now, that is an example in the constitution. So what is the writ of habeas corpus? Who writes it? A judge writes it. Who is the writ sent to obey the president or his representative? So write in the Constitution. You have a clear example where US district courts or courts in common law countries must obey orders by the chief executive.

Now other common law countries, wherever the British Empire went, that’s where common law countries are. Singapore common law country, common law, law system, many countries in several countries in Africa are common law countries. Wherever the British Empire went, they brought the common law with them. Now, the United States is a common law country except for one exception. That is the state of Louisiana. Louisiana stands out differently than all other 49 states. It has common law features and civil law features. So it has part of the English common law, but it also has part of the civil law system of mainland Europe other than Louisiana, all the other 49 states are common law countries.

Sam Rohrer:

Okay, that is excellent, excellent. Now let me go and say here, ask this question because here’s an example of something under the last administration, the Biden administration, people remember that he, through executive order as an example, forgave millions of dollars of student loan debt and the Congress didn’t tell him he could do that, and Supreme Court came back and said that what he did was unconstitutional, but I don’t think that he listened to the Supreme Court. So what power does the court have? So the court issues a writ. The Supreme Court tells the President, what you did was unconstitutional, and he says, I don’t want to do it. So what happens then, David?

David New:

Well, you have a constitutional crisis, but for some reason the Democrats did not see that as a constitutional crisis when President Biden did it. Ladies and gentlemen, right now we have, shall I say in my opinion, the kind of president. We want a president that believes in traditional American values, who is pro-life, who believes in the family, who believes in religious freedom, second Amendment rights. But there can be a time where the next president comes along is not so sweet. You don’t want to give up your common law rights. You don’t want to have the president become a dictator that he can do anything he wants to. You want. There are so many cases where judges have issued writs of habeas corpus because the executive locked them up illegally and inappropriately. It’s nothing you want to give up. And so I’m very pleased that President Trump says he will. Usually presidents can work this situation. President Biden, I’m very disappointed in his behavior doing something like that. He has no business forgiving as much of those debts as he did.

Sam Rohrer:

Absolutely. Ladies and gentlemen, in the next segment we’re going to talk about this interaction with freedom because all of this, that’s what comes down to David. Let go here for the balances segment. Do this a little bit of history here from a governmental perspective. In my opinion, what we’re talking about is the matter of authority, who as the last word, the entire principle of separation of powers, checks and balances. Things that people listening to me understand. Frankly, I think the taking of the constitutional oath where those who take it actually are binding themselves to do what the Constitution says. Those are all elements that are there. Here’s my question, could you share a bit of American history here, David, that would perhaps shed more light on the critical nature of these principles, this matter of power and the separation and protecting these places and why this discussion we’re having here today, like on this program right now, so important.

David New:

It is a very dangerous situation when presidents don’t obey what the Supreme Court of the United States says. That is a very, very dangerous situation to be in. And there in the past have been situations where presidents did not do what they were supposed to do and it sets a bad precedent. We’re going to be talking about one of those in the next section. So our system is a common law system. It requires that the President is not a king. He can be ordered by the judicial branch. Now, president Trump and his people are saying that a lot of these judges are activist judges. That is absolutely true. Some of these federal courts do not. Most of them I suspect don’t like President Trump. They tend to be more on the liberal side, but that doesn’t mean you can disobey them. You’ve got to work with them and work around them in some way to where you are still in compliance with the Constitution of the United States. You lose the Constitution, you lose America.

Sam Rohrer:

And that is a succinct statement there ladies and gentlemen, David, that you just made. Now in this regard, David, so much of our constitutional republic, the branches, the legislative in which I serve the executive branch, judicial branch, all have degrees of authority. So much that I learned is that so much of what our nation depends upon is it seems to me a lot of that’s been lost where the opinion is, well, if I’m in a position of power, if I can do it, I’m going to do it. And it’s not a matter of if, it’s a matter of should. So restraint is a very important part of everything we’re talking about and keeping everything in balance, isn’t it?

David New:

Federalist Papers written by James Madison, John Jay and Alexander Hamilton and Federalist number 45 define the difference between a state government and a federal government. The federal government is a government of limited powers. The state governments have unlimited powers except for that which they surrendered to the federal government. Now that means that the federal government is not supposed to be running rough shot over the whole country. How did it change? How did the federal government become a government of unlimited powers and the states become a limited government? It happened because of the way the Supreme Court interpreted the 14th Amendment that basically wiped out the 10th Amendment the way they interpret it. There’s nothing wrong with the 14th amendment. It’s a great amendment. It ensured the civil rights of African-Americans, 4 million of them. But the way the Supreme Court about 75 years later after it was ratified in 1868, the way they interpreted it basically said, forget about the 10th Amendment.

Sam Rohrer:

And with that ladies and gentlemen, David, we got to break away. Ladies and gentlemen. Stay with us because we’re going to come back, complete this discussion and talk about executive orders, the benefit and the threat, build out some of what we’re talking about. Well, we’re going into our final segment now. And David, this has been a very, very interesting discussion, ladies and gentlemen. I know that a lot has been shared here. David has shared historical facts. I’ve given some specific things. We’ve both laid a lot on the table because you cannot talk about this particular issue of authority. The branches of government, federal, state authority, executive orders coming out of the executive branch court rulings, district court, more specifically President Trump’s executive orders now that are being so challenged by so many others, we are in a time of struggle. There’s no question about it.

In the biggest picture, my perspective, David, I think you probably agree, is that this is a struggle for who is really in authority, who has the authority. Now, theoretically in our nation, ladies and General Republic, the people have the authority, right? But do we really? No. We’re told what to do far too often. Now you’ve got a president, there is the undoing many executive orders from the Biden administration that in making decisions that he did just like the student loan and defied what the Supreme Court told him to do as an example, and things were going a different direction. This is really at point. Can these changes that the Trump administration is trying to make even the proposal to close down entirely the US Department of Education, to which I say yay, yay, because it was never there. It’s not something the federal government should be involved in.

Same thing with Medicare and Medicaid, all of those things. So we have at hand a major struggle to realign and somebody’s going to prevail, somebody’s not. But in the midst of this, you have these contests, executive judicial, legislative. So let’s try and wrap this up here a little bit, David, if we can at this point, and I guess we can go here first in any general sense, do executive orders as an entity, as a methodology of privilege or however you could say it that a president would have? Do they by themselves pose a danger to freedom or perhaps is the content and what the orders require? The real problem?

David New:

Well, most executive orders are constitutional, but there are horrible examples of when they’re not. Ladies and gentlemen, there’s one number you want to remember. It is the worst executive order ever issued by a United States president. It’s executive order number 9 0 6 6 9 0 6 6. That executive order was issued by President Roosevelt on February 19th, 1942. That executive order said that the US Army shall go out and get these Japanese people, moved them away from the west coast and put them in internment camps. I do not call them concentration camps because I limited that to the Holocaust, but they were internment camps. About 112,000 Japanese were moved against their wheel to these camps. About 76,000 of that 112,000 Japanese were citizens of the United States Executive Order 9 0 6 6 was unconstitutional and absolutely insane.

What was even worse is that the US Supreme Court heard the case about executive order 9 0 6 6 and a case called KO Matsu versus United States. Mr. Korematsu was a Japanese person. He tried to get operations on his eyes so that he could pass as a Mexican. This was some of the things that Japanese did to try to avoid going to the internment camps. So he wanted his eyes changed a little bit so he could pass as a Mexican. Well, anyway, he took his case to the Supreme Court and they said it was constitutional, which is insane too. Korematsu ranks along with Dred Scott. Now the thing about this case is everybody was frightened that this order was never rescinded by the United States government. President Ford did that on February 19th, 1976. It’s called an American Promise. And he talked about this order and he said how bad it was. And one of the last sentences tells everything you need to know. This is what it says. I call upon the American people to affirm with me this American promise that we have learned from the tragedy of that long ago experience forever to treasure liberty and justice for each individual American and resolve that this kind of action shall never again be repeated.

So that gave a lot of relief to a lot of lawyers, the judges, because until then, the fear was the president might do it again because it never was reversed or rescinded. So this is how bad executive orders can be,

Sam Rohrer:

David, and that’s a great example. So ladies and gentlemen, just a quick summary. Yes, executive orders like the one David just said, can be clearly unconstitutional and create all kinds of havoc. We also talked about, and David said that a president must and should, for the sake of our republic, obey and conform to a lower court ruling unless he can get it repealed or changed or maybe go to the Supreme Court. But you understand the challenge of defying one authority defying another, and our separation of powers Republic becomes an extraordinary challenge. And I’m going to say as well, from my experience in legislative branch, if any of those three entities, the legislative branch being a big one, if they give up their responsibilities and duties, to which they have a great deal to the executive branch, which is partly why I’m going to say from my perspective why there’s been so much fraud in our spending.

And now just coming to note under Doge, why didn’t Congress find it? That was their responsibility. So I’m going to say people must do and fulfill their responsibilities because if they don’t, one or the other pieces of the authority will pick it up. Because under a government not governed by God, people all want more authority. And that’s the bottom line. That’s why our founders made it so very clear checks and balances and made these things so clear. Now, with that, David, I want to thank you so much for being with us today, the fan. Ladies and gentlemen, you can pick up this program, encourage you to do on our website the transcript, go back and read it. There’s so much today and we’re almost at the end. I also want to say that tomorrow, this program, I and Dr. Gary Dahl and evangelist Dave Kissler are going to be on location in Mid-State, Pennsylvania.

We do this once a year visit, one of the first stations that ever carried this program in the middle part of the state. I’m going to also have a state representative from Pennsylvania and the state treasurer from this state and talking with them not just about Pennsylvania issues, but about things as well that pertain nationally. So that’s where we’re going to be tomorrow, the Lord willing. So hope that you’ll join us and be a part of that. Thank you for being a part of this program today. Now go forth. As we say, pursue the truth, embrace it, and then stand in the gap per truth.