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Picture the scene: it is January 2029 and the 48th US president, a Democrat, is in the Oval Office, having achieved a comfortable win over Republican candidate J.D. Vance in the November 2028 election.

As is the custom for newly elected presidents, the fiery former New York congresswoman Alexandria Ocasio-Cortez (for it is she) is ensconced behind the Resolute Desk signing a slew of executive orders. Her first one restricts the possession of firearms to police officers, the armed forces and the National Guard, and requires all armed American civilians to hand over their weapons or have them forcibly confiscated.

Inevitably, there is uproar: it is a brave president who would deny every freeborn American their inalienable right to go shopping for a rotisserie chicken and a quart of milk in Walmart while strapped up with a Smith & Wesson M&P15 assault rifle. The National Rifle Association files a lawsuit in the state of New York, where it is incorporated, demanding that the order be overturned because it breaches the Second Amendment to the US Constitution, whereby “the right of the people to keep and bear arms shall not be infringed.”

It is an open and shut case, the order is overturned, but the plaintiffs’ victory is limited. Previously, a ruling by a federal judge would have applied nationwide (“federal” is a clue). In this case, however, the judgment applies only in the state of New York and only to members of the NRA. The reason we know this would happen is that it just did.

Executive orders are increasingly being used to avoid the tricky business of actually passing legislation

Ross Anderson

The first executive order signed by Donald Trump in his second term in office denied automatic citizenship to children born in the US to a parent or parents deemed to be in America illegally. Like our imaginary Ocasio-Cortez weapons ban, on the face of it the order breaches the constitution — in this case, the 14th Amendment, which explicitly confers citizenship on almost any US-born child, regardless of parentage. Lawsuits against Trump’s executive order followed and federal judges in Maryland and New Hampshire issued nationwide injunctions preventing the birthright ban from taking effect.

The administration appealed to the Supreme Court and deployed a masterstroke. Trump’s lawyers were not born yesterday: their basis for appeal was not that the birthright ban was in accordance with the constitution — they knew perfectly well that it almost certainly was not. Instead, they argued that there was no constitutional imperative for a federal judge’s ruling in one court to apply nationwide and that injunctions overturning the executive order should apply only in the jurisdictions where they were issued and only to the plaintiffs in each case. Last week, by six votes to three, the Supreme Court agreed.

Now, to anyone other than a legal scholar, this may all seem like angels dancing on the head of a pin, but in fact it has profound implications for how the US is governed.

Supporters of Trump’s executive order welcomed the judgment as a triumph and opponents view it as a defeat. They are both wrong: it is neither. The court was not asked to, and did not, make any determination on the constitutionality of the executive order. This case was not about birthright, it was about the law.

There are striking parallels with another controversial Supreme Court ruling: the decision in 2022 to overturn Roe vs. Wade, the 1973 judgment that women had a constitutional right to abortion. As with the “birthright case,” anti-abortion activists viewed the 2022 ruling as a victory and supporters of women’s right to choose viewed it as a defeat. They were both wrong: it was neither. The case was not about abortion, it was about the law.

The Supreme Court ruled, correctly, that the Roe vs. Wade judgment was flawed because, in 1973, the court had given itself a power to which it was not entitled — to make the law. It ruled, correctly, that the justification for the 1973 verdict — the 14th Amendment “right to privacy” — was wholly spurious. And it ruled, correctly, that in the absence of a federal law regulating the provision of abortion, such regulation was a matter for individual states and not the Supreme Court.

No such law exists, nor is it ever likely to. Any US president who even contemplated one would look at the experience of Barack Obama and shudder. Obama, you may recall, tried to repair a US healthcare system that, by common consent, is terminally dysfunctional, ruinously expensive, delivers medical outcomes that are among the worst in the developed world, and is ripe for reform.

Obama spent eight tortuous and combative years wrangling with Congress, herding cats in the House and Senate, expending political capital he could barely afford, dividing the country — and ended up with a truncated Affordable Care Act that delivered a level of universal healthcare viewed in Europe and elsewhere as not even close to what they take for granted.

Opponents complain that executive orders are in fact ‘royal decrees’ — an emotive phrase for a US audience

Ross Anderson

And this was healthcare, which you would think most people might agree on: can you imagine the mayhem that would ensue if a president tried to legislate on abortion? It would be irrelevant whether the proposed legislation expanded or restricted access to pregnancy termination services — an already polarized country would explode. No president will even try, the political risks are too great.

Which brings us back to executive orders, a device increasingly used by US presidents of all political stripes to avoid the tricky and inconvenient business of actually passing legislation. Until recently, you could count on your fingers the number issued by presidents in their early days in office and most averaged about 12 a year. That changed with Obama, who signed 19 in his first 100 days in 2009. Trump beat that in 2017 with 33, but Joe Biden smashed it out of the park in 2021 with 42. The incumbent president is, however, now a class apart: in the first 100 days of his second term in office, he issued a frankly astonishing 143.

Supporters of executive orders advance two arguments. First, legal: Article II of the US Constitution vests executive power in the hands of the president. Second, moral: a president, especially a newly elected one, has obtained the support of a majority of Americans and should be permitted to give effect to campaign promises.

Opponents complain that executive orders are in fact “royal decrees” — an emotive phrase for a US audience. Here in the Gulf, we are accustomed to laws enacted by royal decree and no one bats an eyelid: but Americans fought an eight-year war of independence to rid themselves of a king as head of state and view aspirations toward royal privilege with deep suspicion.

For this reason, the Constitution, although 250 years old, imposes a system of checks and balances that is sophisticated even by 21st-century standards. Presidential power is countered by the Congress, and vice versa, and the power of each is constrained by a Supreme Court independent of both.

It is a balance that has stood the test of time, but it is a delicate one. With presidential executive orders, Americans risk upsetting that balance at their peril.

• Ross Anderson is associate editor of Arab News.