This question is inspired by this Washington Post piece ("Donald Trump is working his way through the 1st Amendment").

Here's the amendment text, emphasis added:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.

The author's first note says "The 1st Amendment curtails Congress, not the president." It goes on to quote Trump talking about shutting down mosques, blocking Muslims from entering the US, abridging the freedom of the press, etc. and there are a lot of things a President can do without Congress.

Could Executive Action be used to prohibit the free exercise of religion, etc., within the broad authorizations of executive authority that the President has (from Congress or otherwise)?

Related: Could Executive Order 9066 be repeated with other groups today?


1 Answer 1


The powers of the President are contained in Article II of the constitution; this is a fair summary. The power to make executive orders stems from Section 1 "The executive Power shall be vested in a President of the United States of America."

When the Supreme Court considers the legality of an executive order (which only happens when someone brings a case that the court agrees to hear) they use Justice Jackson's Test from Youngstown Sheet & Tube Co. v Sawyer (1952).

The first amendment specifically forbids congress from making laws about these matters. Therefore the express will of congress (as the amendment required a 2/3 majority of Congress) is that there shall be no law about these matters.

Since the President would be acting against the express will of Congress he would drop to the third limb of Jackson's test:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter....

Since, this is not a power that the President is given by the constitution it is likely that the Court would decide that he doesn't have such power.

  • The amendment, expressing the will of Congress, is that Congress shall make no such law. If they wanted to say "that there shall be no law about these matters" they could have said that, without the qualifier. I'm not convinced by your mere implication that there's an equivalence. Congress could provide authorizations that could be interpreted by the Executive branch in a range of ways, some of which do not infringe on those rights, and some of which do, and the executive could change its interpretation e.g. when its leader changes.
    – WBT
    Mar 16, 2016 at 14:08

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