# Can a President over rule the Constitution with an Executive Order **URL:** \ **Category:** Great Debates\ **Created:** [October 30, 2018, 2:42pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725 "2018-10-30T14:42:15Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [October 30, 2018, 8:40pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/101 "2018-10-30T20:40:33Z")
> [@Scylla](#): > > No but your sloppiness is distressing. > > It seemed to suggest that you were attributing that concept to me. How would you like to state it, then? “Immigrants are attracted to social welfare systems as a general matter?” Ah, fuck. I used quotation marks again. ---
**Author:** ![Scylla](https://avatars.discourse-cdn.com/v4/letter/s/a5b964/32.png) [@Scylla](https://boards.straightdope.com/u/Scylla)\ **Post date:** [October 30, 2018, 8:44pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/102 "2018-10-30T20:44:37Z")
> [@Ravenman](#): > > For one, they believe that the laws have moral legitimacy. > > An example of the principle is a man considering whether to cheat on his wife. He has high confidence that he could have a dalliance every now and then with zero chance that his wife would find out. But, he believes it is morally wrong to do so. This person may choose not to cheat on his wife not because he fears divorce, but because he doesn’t want to do something wrong. > > Of course, this man’s best friend may not be cut out of the same cloth. The friend may have no qualms whatsoever about breaking a promise to his wife, but he does fear divorce. Perhaps he thinks he just can’t get away with it. And for this reason, this degenerate might not cheat on his wife. > > Sadly, the friend in this scenario probably believes that everyone is like him, such that the only reason that any man wouldn’t cheat on his wife is for fear of getting caught. > > There are of course other reasons why people generally follow laws and social norms, but this is just one example. > > . I will be interested in hearing about others. To clarify your example though, the person in your first example wants to have an affair, right? He doesn’t because he thinks it would be immoral, right? Where does this morality come from? What is it’s foundation? Why does he value it more than the pleasure he would get from cheating? How can you say that doesn’t view being immoral as possessing negative value? Receiving a negative value consequence is punishment. What were those other reasons? ---
**Author:** ![Scylla](https://avatars.discourse-cdn.com/v4/letter/s/a5b964/32.png) [@Scylla](https://boards.straightdope.com/u/Scylla)\ **Post date:** [October 30, 2018, 8:46pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/103 "2018-10-30T20:46:34Z")
> [@Ravenman](#): > > How would you like to state it, then? “Immigrants are attracted to social welfare systems as a general matter?” > > Ah, fuck. I used quotation marks again. How about the “welfare magnet effect?” I have a cite showing the causative relationship. ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [October 30, 2018, 8:56pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/104 "2018-10-30T20:56:45Z")
> [@Scylla](#): > > Receiving a negative value consequence is punishment. Nonsense. When you have to redefine terms to support your position your position is wrong. > [@Scylla](#): > > What were those other reasons? The main reason that decent people choose not to be a horrible people is empathy. Another reason is believing that social order is superior to anarchy - it may be awesome if you can freely rob others, but it gets less awesome if you are constantly having to fend off robbers yourself. So you take a stance to try to get robbery banned, and nobody will listen to you if you’re being an overt hypocrite about it. Another reason is because you value the opinions of others, and wish to be deserving of their respect - which requires you to at least somewhat comply with their expectations of a respectable person. And then you have fear of punishment. The most base and ignoble of reasons not to do something. ---
**Author:** ![Scylla](https://avatars.discourse-cdn.com/v4/letter/s/a5b964/32.png) [@Scylla](https://boards.straightdope.com/u/Scylla)\ **Post date:** [October 30, 2018, 9:07pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/105 "2018-10-30T21:07:09Z")
> [@begbert2](#): > > Nonsense. When you have to redefine terms to support your position your position is wrong. Oh. I’m sorry. What was the previous definition of punishment before “negative value consequence?” > [@](#): > > The main reason that decent people choose not to be a horrible people is empathy. What’s that? How’s that work exactly? [quote{Another reason is believing that social order is superior to anarchy - it may be awesome if you can freely rob others, but it gets less awesome if you are constantly having to fend off robbers yourself. [/quote] So they don’t rob because they would view living in such a world as a punishment. Next? > [@](#): > > So you take a stance to try to get robbery banned, and nobody will listen to you if you’re being an overt hypocrite about it. So being a hypocrite and having nobody listen you is the punishment you get for trying to get others to follow a morality you do not. Next? > [@](#): > > Another reason is because you value the opinions of others, and wish to be deserving of their respect - which requires you to at least somewhat comply with their expectations of a respectable person. Loss of respect as punishment. Next? Look. Everybody picks their nose when they are alone. ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [October 30, 2018, 9:07pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/106 "2018-10-30T21:07:30Z")
> [@Velocity](#): > > If this got to SCOTUS, it would probably be struck down 9-0. Or maybe 8-1 (Thomas is the only one i can see voting in favor of it.) This is undoubtedly true. But I worry about what kind of havoc can be wreaked and how many innocent lives might be ruined before the issue gets before the Supreme Court. The wheels of justice turn slow in this country. Can someone walk me through the practical effects of such an EO? Can some judge immediately put a “stay” on the order until a federal court can review it? I seem to recall something like that happening with the Muslim ban. But for all I know millions of US citizens can be deported and/or disenfranchised before SCOTUS decides to review the order in a few years, if ever. Is that a realistic fear? ---
**Author:** ![Weedy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/weedy/32/301_2.png) [@Weedy](https://boards.straightdope.com/u/Weedy)\ **Post date:** [October 30, 2018, 9:13pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/107 "2018-10-30T21:13:35Z")
> [@Slash1972](#): > > Can somebody explain how this would work in practice? Would hospitals have to start checking the citizenship of people before filing the birth certificate? Hospitals are not subject to following Executive Orders, as far as I know. Why would they? How does it work in other countries where birth doesn’t grant you citizenship? In Australia, parents file the birth certificate. If the parents are citizens, the child automatically has citizenship, but you might need to prove it for certain things. When I got passports for my children, I had to show my birth certificate as well as theirs. ---
**Author:** ![griffin1977](https://avatars.discourse-cdn.com/v4/letter/g/977dab/32.png) [@griffin1977](https://boards.straightdope.com/u/griffin1977)\ **Post date:** [October 30, 2018, 9:29pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/108 "2018-10-30T21:29:21Z")
> [@Velocity](#): > > If this got to SCOTUS, it would probably be struck down 9-0. Or maybe 8-1 (Thomas is the only one i can see voting in favor of it.) I can’t see even Clarence Thomas voting for this one. If you seriously think the president should be able to nullify amendments of the US constitution with an executive order you have no place on the supreme court, or indeed any position that requires you to make the oath of allegiance. ---
**Author:** ![griffin1977](https://avatars.discourse-cdn.com/v4/letter/g/977dab/32.png) [@griffin1977](https://boards.straightdope.com/u/griffin1977)\ **Post date:** [October 30, 2018, 9:31pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/109 "2018-10-30T21:31:53Z")
> [@DrCube](#): > > This is undoubtedly true. But I worry about what kind of havoc can be wreaked and how many innocent lives might be ruined before the issue gets before the Supreme Court. The wheels of justice turn slow in this country. > > Can someone walk me through the practical effects of such an EO? Can some judge immediately put a “stay” on the order until a federal court can review it? I seem to recall something like that happening with the Muslim ban. But for all I know millions of US citizens can be deported and/or disenfranchised before SCOTUS decides to review the order in a few years, if ever. Is that a realistic fear? Yes as with the “Muslim ban” the lower courts can put an injunction on it pretty quickly, which would stay in place while case makes its way up through the court system. And this (if it happens which I doubt to be honest, he’s just trolling to gin up the base before the midterms), would make that abomination seem well considered constitutionally sound. ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [October 30, 2018, 9:37pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/110 "2018-10-30T21:37:03Z")
> [@Scylla](#): > > Oh. I’m sorry. What was the previous definition of punishment before “negative value consequence?” [Well, let’s have a look.](https://www.merriam-webster.com/dictionary/punishment) > [@Definition of "punishment"](#): > > 1 : the act of punishing > > 2a : suffering, pain, or loss that serves as retribution > > b : a penalty inflicted on an offender through judicial procedure > > 3 : severe, rough, or disastrous treatment > [@Definition of "punish"](#): > > 1a : to impose a penalty on for a fault, offense, or violation > > b : to inflict a penalty for the commission of (an offense) in retribution or retaliation > > 2a : to deal with roughly or harshly > > b : to inflict injury on : hurt Note that when we’re _not_ pulling the definition out of our asses, punishments are inflicted by somebody else as a deliberate response to the infraction. (The suffering/injury/pain is a different use of the word - but even if it _wasn’t_ mild displeasure or decreased happiness don’t cut it, outside of bullshit-land.) > [@Scylla](#): > > What’s that? How’s that work exactly? I’m going to pretend to be surprised you don’t know what [empathy](https://www.merriam-webster.com/dictionary/empathy) is. > [@Scylla](#): > > So they don’t rob because they would view living in such a world as a punishment. Next? Doesn’t meet the non-bullshit definition. Fail. > [@Scylla](#): > > So being a hypocrite and having nobody listen you is the punishment you get for trying to get others to follow a morality you do not. Next? Doesn’t meet the non-bullshit definition. Fail. > [@Scylla](#): > > Loss of respect as punishment. Next? Doesn’t meet the non-bullshit definition. Fail. > [@Scylla](#): > > Look. Everybody picks their nose when they are alone. I don’t, actually. Because of the other reason no to do “bad” things - _because they don’t make you happy_. Why would I want to gunk up my finger? ---
**Author:** ![Scylla](https://avatars.discourse-cdn.com/v4/letter/s/a5b964/32.png) [@Scylla](https://boards.straightdope.com/u/Scylla)\ **Post date:** [October 30, 2018, 11:06pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/111 "2018-10-30T23:06:21Z")
> [@begbert2](#): > > [Well, let’s have a look.](https://www.merriam-webster.com/dictionary/punishment) My definition fits within there. > [@](#): > > Note that when we’re _not_ pulling the definition out of our asses, punishments are inflicted by somebody else as a deliberate response to the infraction. You just made that up. > [@](#): > > (The suffering/injury/pain is a different use of the word - but even if it _wasn’t_ mild displeasure or decreased happiness don’t cut it, outside of bullshit-land.) So now there is a severity requirement to qualify as punishment? I guess if you are making stuff up, you might as well go big. [quoteI’m going to pretend to be surprised you don’t know what [empathy] ([Empathy Definition & Meaning - Merriam-Webster](https://www.merriam-webster.com/dictionary/empathy)) [/quote] I was looking for you to bridge the explanatory gap about how empathy stops you from breaking the law. > [@](#): > > I don’t, actually. Because of the other reason no to do “bad” things - _because they don’t make you happy_. Why would I want to gunk up my finger? You eat it. Clean finger, no problem. Good and good for you. ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [October 30, 2018, 11:37pm UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/112 "2018-10-30T23:37:31Z")
I’m formally dropping this hijack. Apologies all. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 31, 2018, 1:13am UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/113 "2018-10-31T01:13:53Z")
It is definitely not a frivolous argument. Let’s say that the sneaky Canadians (because we never watch them well enough) launch a surprise attack and take over Niagara Falls, NY because they want to have BOTH falls and spread national health care. They are regular military in uniform and bring their families with them because the residents of Niagara Falls, NY are so surprised, that they do not resist. Niagara Falls, NY is under Canadian military occupation for six months while we try to diplomatically work things out. Are children of Canadian soldiers and their spouses, born in Niagara Falls, NY, citizens under the 14th Amendment? They are legally (according to our law) under our jurisdiction and the soldiers can be arrested and deported. Even killed actually, right? ---
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [October 31, 2018, 1:19am UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/114 "2018-10-31T01:19:13Z")
> [@Budget\_Player\_Cadet](#): > > And I think, if push came to shove, **Bricker** would defend this. He’s defended far worse in the various threads about voter disenfranchisement. BPC, I’m only going to say this once. Bringing up other posters just to take a shot at them is perilously close to trolling for effect. Do it again and it’s warning time. Do not take shots at a position you THINK another poster might take. ---
**Author:** ![Chingon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chingon/32/17645_2.png) [@Chingon](https://boards.straightdope.com/u/Chingon)\ **Post date:** [October 31, 2018, 1:20am UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/115 "2018-10-31T01:20:14Z")
> [@UltraVires](#): > > It is definitely not a frivolous argument. Let’s say that the sneaky Canadians (because we never watch them well enough) launch a surprise attack and take over Niagara Falls, NY because they want to have BOTH falls and spread national health care. They are regular military in uniform and bring their families with them because the residents of Niagara Falls, NY are so surprised, that they do not resist. > > Niagara Falls, NY is under Canadian military occupation for six months while we try to diplomatically work things out. Are children of Canadian soldiers and their spouses, born in Niagara Falls, NY, citizens under the 14th Amendment? > > They are legally (according to our law) under our jurisdiction and the soldiers can be arrested and deported. Even killed actually, right? This is certainly a scenario that deserves some deep pondering. Hmmmmmmmmmm ---
**Author:** ![XT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xt/32/456_2.png) [@XT](https://boards.straightdope.com/u/XT)\ **Post date:** [October 31, 2018, 1:24am UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/116 "2018-10-31T01:24:21Z")
Paul Ryan says basically the same thing many in this thread have said. From CNN: [https://www.cnn.com/2018/10/30/politics/birthright-citizenship-executive-order-trump-paul-ryan/index.html](https://www.cnn.com/2018/10/30/politics/birthright-citizenship-executive-order-trump-paul-ryan/index.html) > [@](#): > > House Speaker Paul Ryan told a Kentucky radio station on Tuesday that “you cannot end birthright citizenship with an executive order,” remarks that come after President Donald Trump said that he has thought about trying to do just that. > > “You obviously cannot do that,” Ryan told WVLK when asked by an interviewer about the President’s recent comments and where he stands on “an executive order ending birthright citizenship.” > > Ryan went on to say, “As a conservative, I’m a believer in following the plain text of the Constitution and I think in this case the 14th Amendment is pretty clear.” > > The right to citizenship for anyone born in the United States is guaranteed in the 14th Amendment to the Constitution. ---
**Author:** ![griffin1977](https://avatars.discourse-cdn.com/v4/letter/g/977dab/32.png) [@griffin1977](https://boards.straightdope.com/u/griffin1977)\ **Post date:** [October 31, 2018, 1:36am UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/117 "2018-10-31T01:36:42Z")
> [@XT](#): > > Paul Ryan says basically the same thing many in this thread have said. From CNN: [https://www.cnn.com/2018/10/30/politics/birthright-citizenship-executive-order-trump-paul-ryan/index.html](https://www.cnn.com/2018/10/30/politics/birthright-citizenship-executive-order-trump-paul-ryan/index.html) Lindsay Graham not so much: > **[Sen. Lindsey Graham says he'll introduce legislation to end birthright...](https://www.cbsnews.com/news/in-the-past-republicans-have-suggested-ending-birthright-citizenship-requires-amending-constitution/)** > > In the past, Republicans — Graham included — have suggested such a change would require a constitutional amendment Seriously it is a measure of the constitutional crisis currently enveloping the US, that saying “The president can’t directly overrule an amendment in the US Constitution with an executive order” is remotely surprising or controversial statement. Doubly galling as we’ve had to put up with the GOP screaming blue murder about Obama riding roughshod over the constitution everytime he did something they disagreed with. ---
**Author:** ![Corry\_El](https://avatars.discourse-cdn.com/v4/letter/c/ecae2f/32.png) [@Corry\_El](https://boards.straightdope.com/u/Corry_El)\ **Post date:** [October 31, 2018, 1:51am UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/118 "2018-10-31T01:51:31Z")
The idea that Trump would be ‘overruling the Constitution’ here is not as certain as several people are assuming, AFAIK. There have not been any cases directly on point, ie whether _Congress_ in particular, can pass laws saying the children of non-permanent resident, or illegally resident, foreign nationals fall outside ‘under [United States] jurisdiction’ for the purpose of birthright citizenship. Courts did find that it applied to permanent residents (US v Wong Kim Ark). The bigger problem for doing this via an executive order is that Congress has passed citizenship laws in furtherance of the amendment. The EO could be viewed as unacceptable on separation of powers grounds because it should up to Congress to clarify those statutes as to the meaning of ‘under the jurisdiction’, rather than necessarily saying that the common recent interpretation is the only Constitutional one. IOW Trump could fail here by being found to have overruled Congress rather than the Constitution. If Congress were to pass a law excluding the children of foreign nationals from automatically being citizens it’s not 100% clear that’s unconstitutional. Not to say it’s necessarily a good policy, but the idea it requires a constitutional amendment is less than 100% airtight. ---
**Author:** ![Kimera757](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kimera757/32/3765_2.png) [@Kimera757](https://boards.straightdope.com/u/Kimera757)\ **Post date:** [October 31, 2018, 2:07am UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/119 "2018-10-31T02:07:44Z")
> [@Clu-Me-In](#): > > [Donald Trump says he will overrule the 14th with an Executive order.](https://youtu.be/H355oS-c_3A) If he can overturn this amendment with an executive order, he could turn others over too. The short answer is no. If presidents could do that, then they could eliminate other amendments. Here’s just a sample: Second Amendment, the “Right to Bear Arms”: a Democratic president could overturn this. And a Republican president could put it back. It would get ridiculous really quickly. Fifth Amendment: Now you can put someone on trial over and over and over again. Sixth Amendment: You can be put on trial, and they don’t have to tell you what you’re being charged with. Didn’t Kafka write a novel where this happened? Eighth Amendment: You can face cruel and unusual punishment now that this amendment has been overturned. Thirteen Amendment: This amendment outlawed slavery. The impact of overturning this is obvious. Also, who could be enslaved? It could be political prisoners, people with certain characteristics, people who mock a president on Twitter, etc, as far as I can tell. Sixteenth Amendment: No more income tax. Starve the beast! Errr… starve the government! Nineteenth Amendment: Women couldn’t vote anymore. Twenty-first Amendment: Bring back Prohibition. What could go wrong? Obviously, none of that is going to happen. Trump just hates the foreign-born, which isn’t a surprise considering how he started his campaign. ---
**Author:** ![Johnny\_L.A](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johnny_l.a/32/1084_2.png) [@Johnny\_L.A](https://boards.straightdope.com/u/Johnny_L.A)\ **Post date:** [October 31, 2018, 3:31am UTC](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725/120 "2018-10-31T03:31:28Z")
> [@Kimera757](#): > > If he can overturn this amendment with an executive order, he could turn others over too. The short answer is no. > > If presidents could do that, then they could eliminate other amendments. Here’s just a sample: The 22nd Amendment. If a president had facist/authoritarian tendencies, he could eliminate presidential term limits by fiat. By restricting the vote to his supporters (gerrymandering, purging voting lists, etc.) he could become President for Life. [Previous page](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725.md?page=5) [Next page](https://boards.straightdope.com/t/can-a-president-over-rule-the-constitution-with-an-executive-order/823725.md?page=7)