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President Donald Trump ramped up attacks against his opponent, Joe Biden, calling Biden the "dumbest of all candidates," and went so far as to declare, "maybe I'll sign an executive order that you cannot have him as your president."

Would that be legal?

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  • He could issue an order that Martians paint themselves pink. It would not be illegal to do so. It would just be meaningless.
    – RedSonja
    Commented Sep 24, 2020 at 11:53

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Under the Constitution, the president has to be a natural born citizen of the US, a resident for 14 years (relevant in the early years), and 35 years of age or older. Any action to preclude a candidate has to be based on these qualifications. Art. II of the constitution spells out the powers of the executive branch. His primary power is to carry out laws enacted by Congress, therefore executive orders have to be based on some statute, or specific Constitutional authority (e.g. as commander-in-chief). No law allows the president to nullify the fact that Biden is a natural born citizen of the US, a resident for many time 14 years, and 35 years old. Congress has not passed a law declaring that Biden has been previously impeached and removed from office (another way to stop a person from being elected). There being no such authority, an order to that effect would not be legal. In addition, executive orders give orders within the executive branch, and the executive branch isn't in charge of certifying the next president: POTUS cannot give orders to the House of Representatives, or to the Supreme Court.

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    On the other hand, the mere act could be more than enough grounds to start another impeachment process...
    – Trish
    Commented Sep 21, 2020 at 15:29
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    @Trish Presidents sign executive orders that are outside their powers all the time and nobody has been impeached for it. The courts overrule it and everyone moves on. Why would this be different?
    – Matt
    Commented Sep 21, 2020 at 19:08
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    Passing a law declaring that someone has previously been impeached and removed from office would not disqualify the person from the presidency, just as passing a law declaring that someone has been convicted of a felony does not make that person a felon. Congress cannot will facts into existence simply by passing laws declaring them to be so. Furthermore, being convicted on impeachment doesn't result automatically in disqualification; the punishment of disqualification must be imposed explicitly and separately.
    – phoog
    Commented Sep 21, 2020 at 19:12
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    @Trish it would not. It was clearly a joke and such an executive order would carry no more weight than a president pardoning a turkey. Executive orders are top-down directives on how to follow specific laws. They are marching orders given to the executive branch on how to executive the law. Since there is clearly no law here to be executed, and given how often Trump opts out to joke when making public statements, there is no reason to view this in any other way. But the most common understanding of Nixon v US is that HoR doesn't need a factual reason to start an impeachment.
    – grovkin
    Commented Sep 21, 2020 at 19:42
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    @grovkin I just contend that it was not clearly a joke. I meant "The act [of signing such an EO]", as outlined by Phoog.
    – Trish
    Commented Sep 21, 2020 at 20:35
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No. The process of choosing and installing a president is specified by the constitution and statute law. The sitting president plays no part in it. Executive orders cannot modify the constitution nor statute, at least when the executive has no role to play in the execution of the statute, as is the case here.

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  • @grovkin I'm not familiar with DOCA. Would it illustrate a mechanism whereby executive priorities could be brought to bear on the selection of a president? Also, congress can nullify an executive order by revoking the statutory authority on which it is based.
    – phoog
    Commented Sep 21, 2020 at 19:54
  • @grovkin Oh I see. That makes more sense. In that case, the order concerns a statute that directs the president to take some action, and the executive order in turn directs the executive branch's implementation of that statute. In this case, there is no action for the executive to take, so there's nothing for the president to modify or direct.
    – phoog
    Commented Sep 21, 2020 at 20:06
  • @grovkin the mention of DACA reminds me of another way the executive can ignore statutory provisions, which is by regulation. There's an example in the Real ID act, which is a mandate to confirm the validity of foreign passports that the executive rejected, basically saying "this is impractical, so we're not going to do it or require states to do it."
    – phoog
    Commented Sep 21, 2020 at 20:08

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