Trump’s Pen vs. California Policy: Who Wins?

We have seen President Trump sign over 40 Executive Orders since taking office just four weeks ago. As I have been looking into specific issues, like immigration enforcement, or abortion law, I’ve found myself wondering – can the state contradict federal law? What exactly ARE executive orders, and do they require immediate action by states? Can a state challenge executive order and how would they do so?

The most recent event in the news about this was President Trump’s executive order halting gender affirming care for minors. On January 28th, Trump signed the “Protecting Children From Chemical and Surgical Mutilation” order, which directs federal agencies to stop funding, promoting, or supporting any gender affirming care activities carried out by medical institutions for minors such as the use of puberty blockers, hormone replacement therapy, or surgeries.[1] Soon after this order, Children’s Hospital of Los Angeles was reported to have stopped initiating hormone therapy and scheduling gender-affirming surgeries for anyone under the age of 19.[2] At the same time, California’s Attorney General, Rob Bonta, put out a statement that under California’s anti-discrimination laws, medical providers are still required to provide gender-affirming care regardless of the federal policy position that the Trump Administration is taking.[3]

So, which is it? Who is right? What are medical providers like CHLA supposed to do?

To answer this specific situation, we need to understand on a much larger scale the relationship between the federal government and state governments, as well as the impact that executive orders like the one about gender-affirming care have on a state level. Will California have to change its laws or policy positions on critical issues because of the Trump Administration?

Definition & Purposes of Executive Orders

Let’s start with the basics – what is an executive order? On the federal level, an executive order is a directive from the President to the Executive Branch that doesn’t require congressional approval.[4] On the state level, Governors also have the power to sign executive orders, similarly directed to state agencies and employees. Executive orders date back all the way to our very first Presidential Administration, with George Washington issuing 8 of them during his time as President.[5]

Executive orders essentially have four main purposes:

First, they can be used to enforce existing law. This is done by clarifying what the law says and how it should be carried out by federal agencies. One example of this would be the Desegregation of the Military under Harry Truman in 1948. The first section of the order stated the following, “It is hereby declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin.”[6]

The existing laws already in place were the 14th amendment to the Constitution – which was supposed to guarantee people of all races equal protection under the law, as well as the Servicemen’s Readjustment Act of 1944 – which was supposed to provide benefits like education and job training to World War II veterans.[7] The sad reality at the time of Truman’s presidency was that African Americans in the military were segregated away from white soldiers and were usually given noncombat roles, received inferior training, and faced discrimination.[8] This meant African Americans in the military were not being treated in accordance with the 14th amendment, and they were not receiving the benefits that they should have been under the Readjustment Act.

Truman issued Executive Order 9981 on July 26, 1948, to change that, and to enforce that all men, even men in the military, were to be treated equally without regard to their race. He wasn’t creating any new laws, but he was issuing an order to enforce the laws that already existed and were being ignored or incorrectly applied by the military – which is under the purview of the Executive Branch.

The second purpose of an executive order could be simply to manage the federal government. For example, during his time as president, Reagan passed Executive Order 12291 to manage regulatory review. Before his order, federal agencies could issue new regulations without much oversight. This executive order implemented the requirement that agencies conduct a cost-benefit analysis for proposed regulations to prove that the benefits outweighed the costs. The order also gave the Office of Management and Budget the authority to review and approve new regulations. These and other changes made by the Executive Order helped to deregulate several industries, like energy and transportation.[9]

This ultimately managed how the federal government would approach new regulations set by its agencies. Future administrations built off this order to continue shaping management of regulations over the years. During his first term, President Trump issued an order that required federal agencies to get rid of two existing regulations for each new regulation they wanted to create.[10]

The third purpose of an executive order could be to declare national emergencies. After 9/11, for example, President Bush issued Executive Order 13224, declaring a national emergency and freezing the assets of people or groups suspected of financing terrorism. It gave the Treasury Department the authorization to block financial activity for anyone who might have terror ties.[11] Or, for a more recent example, take Executive Order 13912 enacted by President Trump in 2020, declaring a national emergency in response to the COVID-19 pandemic. He called for the National Guard to assist with the pandemic response and allowed the federal government to direct resources toward medical supplies, testing sites, and emergency hospital setups.[12]

The last main purpose of executive orders can be to establish new policy positions of the federal government. We saw this under the Biden Administration with his Executive Order titled Tackling the Climate Crisis at Home and Abroad. In it, President Biden established climate change as a top priority for the U.S. government, positioning the United States as a leader in climate action. Some of the key provisions in the order that facilitated this policy shift were requiring intelligence agencies to assess the risks of climate change on national security, calling for a comprehensive review of the impacts of fossil fuels on climate change, and creating the Environmental Justice Advisory Council to establish environmental equity.[13] This order made it clear to the Executive Branch that a priority of the Biden Administration would be addressing climate change, which was a direct policy shift from the prior Trump Administration. We then also saw the incoming Trump Administration earlier this year reverse that back by pulling out of the Paris Climate Agreement, shifting once again to demonstrate how different agendas can be under each President based on what they see the main issues as and how they want to tackle them.

There are countless examples of other executive orders to demonstrate these four purposes, and I’m sure there are several other reasons executive orders have been used in the past, but overall I think it’s fair to say that enforcing existing law, managing the federal government, declaring national emergencies, and establishing policy positions are the primary bases for issuing executive orders.

What Executive Orders CAN’T Do

If those are all things that executive orders can do, what can executive orders not do? To reiterate from the examples above, executive orders do not create new laws. Laws cannot be written, new legislation cannot be passed, through the Executive Branch. That is the sole function of the Legislative Branch. Only Congress has the power to write new laws. Yet, clearly executive orders can direct how existing laws are enforced, and they can set federal policies that guide lawmakers. They also give Congress an idea as to whether the President will approve or veto laws they create and propose. This is why you may be hearing a lot in the news from the Trump Administration calling on Congress to support his policy agenda – what that means is that the President, in our case today President Trump, outlines what his priorities are during his time in office and the policy positions he will take on key issues, and then Congress either works to impede that agenda or to assist it. Congress can pass laws that slow the President’s progress, or Congress can pass laws that are in line with the President’s goals.

For example, going back to the Executive Order passed by President Bush in the wake of 9/11 – Congress then followed the President’s lead to move swiftly to pass what would become known as the Patriot Act. Because President Bush had declared a national emergency and took extreme steps to intercept anyone financially supporting terrorism, Congress followed his lead to take preemptive measures against anyone with connection to terrorism.[14] Congress can also do the opposite by blocking a President’s Executive Order. In the same example, President Bush also signed Executive Order 13233 in 2001 which allowed the used of enhanced interrogation on detainees during the extended war on terror that followed 9/11. But there were concerns in the years to follow about these techniques, and allegations of torture and cruelty that would stain the reputation of our country. So, in 2005, Congress passed The Detainee Treatment Act, which prohibited the use of inhumane treatment. This went directly against the executive order previously issued by President Bush, and there was debate at the time over the ability of Congress to limit the Executive’s power as a result.[15]

All that is to say that executive orders themselves do not pass laws. Laws are created by Congress, either in support of or in opposition to the agenda outlined by Executive Orders signed by the President.

Executive Orders also cannot violate the constitution. If an executive order’s constitutionality is in question, that is an issue that will be settled by the third branch of government – the judicial branch. Courts can order preliminary injunctions on the carrying out of executive orders until legal arguments can be made both in opposition to and in defense of the order, and until a final verdict is rendered on the order’s legality. Once arguments are made, courts can strike down executive orders if the content is determined to be unconstitutional.[16] In fact, we’re already seeing numerous lawsuits being brought against Trump’s executive orders to fight their constitutionality and it is exhausting to keep up with how many legal challenges have been brought, all in just the first month of his presidency.

The Anti-Commandeering Doctrine

The last point I want to touch on about what executive orders cannot do transitions into answering the questions I asked at the beginning of this article – which is how the President’s executive orders affect states, and even more specifically for us, what do they mean for California. That is answered through understanding the anti-commandeering doctrine in the 10th amendment. Under this doctrine, Presidential Executive Orders cannot force states to enforce federal policy.

What does this mean and where is it stated? In the 10th amendment there is a line that states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[17] In 1992, the Supreme Court ruled in the case New York vs. United States that the federal government cannot require states to adopt federal regulations, and it used this line as support. The doctrine was further defined in 1997 by another Supreme Court case where it was ruled that the federal government cannot force states to require federal background checks. Listen to Justice Samuel Alito’s description of the importance of the anti-commandeering doctrine:

“It is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States. Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anti-commandeering doctrine simply represents the recognition of this limit on congressional authority.”[18]

The basic idea is that states’ rights are protected through the prevention of the federal government from requiring state legislatures to enforce federal regulation, policy, and law.

This is seen in executive orders because executive orders are binding only on federal agencies and officials, federal contractors, and the overall Executive Branch. Executive orders are not binding on state governments, private citizens, or even on Congress. The President could not pass an executive order requiring the states to enforce federal policy positions. Federal agencies are the ones responsible for carrying out federal law, even if state governments oppose those laws.

However, on the flip side of this, executive orders can still directly impact states, usually through funding. So, while an executive order cannot mandate a state to carry out federal policy, it could remove funding from states who do not fulfill the conditions for federal funding, which could be through a state taking actions that are opposite to a federal policy position. The threat of removing funding can often incentivize states to cooperate with federal agencies in carrying out the President’s agenda. Going back to the example I mentioned at the very beginning of this article about gender affirming care – President Trump’s executive order explicitly states that it will remove federal funding from medical institutions that perform these procedures on minors.[19]

Lastly, I want to expand on the point that federal agencies enforce federal law. Just because states cannot be required to enforce federal law, doesn’t mean that individual residents of each state can break federal law without consequence. It just means it is the responsibility of federal agencies to carry out enforcement. If there are instances of terrorism or cybercrime, then the FBI would get involved. If there was suspicion of drug crime, the Drug Enforcement Administration, or DEA, would investigate. If states don’t act on illegal immigration, then ICE, or US Immigration and Customs Enforcement, will intervene. The federal government can prosecute anyone who violates federal law, even if the state law does not enforce the federal law.

Take immigration – California has taken the stance that it will not enforce federal immigration law, and it will not cooperate with ICE. Does that mean that illegal immigration is just okay in California and there’s nothing that can be done about it? Well, no. ICE is a federal agency and can still come in and conduct raids to detain and deport illegal immigrants. ICE can’t force state agencies or local law enforcement to assist or cooperate with them, but they can still operate in any state to execute justice in accordance with federal law.

To recap what we’ve learned so far: The federal government cannot force states to enforce federal laws or policy positions. Executive orders specifically apply only to federal agencies and cannot require states to advocate for the policy positions outlined by the President. Federal agencies carry out enforcement of federal law, not state governments. Yet, states can still be impacted by the ramifications of the directives given in executive orders, like if federal funding is conditioned on certain actions by states.

Case Studies – Immigration, Gender Affirming Care, & Water Policy

Naturally, this all gets messy when we start to think about state policies that directly oppose federal policies. I want to walk through some of the most prominent issues that have come up so far and apply the principles discussed so that you are equipped to understand how our state is affected by recent executive orders, especially as I’m sure we will see more issued in the coming months.

Let’s start with immigration. California does not enforce federal immigration law. How does that work? Federal law says illegal immigration is a crime subject to arrest and deportation, but California has said that we are a sanctuary for illegal immigrants. How can the two coexist? Well, going back to our Anti-Commandeering Doctrine – California cannot be forced to carry out the immigration policy set by the federal government. This means that California is allowed under our constitution to essentially look the other way. Where this gets tricky is when it comes to the Supremacy Clause in Article 6 of the Constitution. Under the Supremacy Clause, federal law overrides state law in areas where the two conflict – which is called preemption.[20] So, California cannot pass a law that says illegal immigrants are automatically granted amnesty. That would conflict with federal law which makes it a crime. But California CAN pass laws that say law enforcement will not cooperate with ICE. This way our state isn’t saying illegal immigration isn’t illegal, it’s just saying that it’s a federal government issue, and so a federal agency must be the one to enforce it.

What is important to remember with immigration is that states are not allowed to directly defy federal law. So, while California maintains a sanctuary state status, it cannot break federal law in the process. To break federal law would be to knowingly harbor illegal immigrants and to prevent ICE from doing its part to enforce the law. What we are seeing with the Trump Administration is that they will not tolerate states that take their sanctuary status so far that they are actually hindering ICE from conducting immigration enforcement. For example, Attorney General Pam Bondi just announced last week that the federal government will be suing New York’s Governor and Attorney General over immigration laws that take their sanctuary status past the point of simply not assisting ICE and into the realm of actively working against ICE to keep illegal immigrants in the country.[21] California is in dangerous territory as it has regularly and repeatedly done the same. In 2018, Oakland Mayor Libby Schaaf publicly announced an impending ICE raid, tipping off over 800 illegal immigrants who escaped ICE, many of whom were convicted criminals.[22] This flew directly in the face of the federal government’s ability to do its job in carrying out the consequences demanded by federal immigration law. These actions by sanctuary states in the past haven’t been addressed by the federal government, but the clear message from the Trump Administration is that they will not be looking the other way. If state officials directly defy federal law, then they will be subject to prosecution.

What about the executive order on gender affirming care? Well again we see that the order does not directly compel the states to cease all gender affirming care activities. But what it does do is it removes funding from institutions that continue to provide these medical interventions to minors. It also directs the Department of Justice to work with Congress to introduce legislation that would provide an avenue for minors damaged by these medical procedures to take legal action against doctors. How does this interact with California’s sanctuary status for transgender minors? The same way as immigration. California is not required to change its laws to no longer be a sanctuary state for these types of procedures. But medical providers in the state will have to contend with the consequences of continuing to provide this type of care. They may not be eligible for federal funding, and they may be open to criminal liability in the future if Congress does pass that kind of legislation. Is California’s Attorney General correct then that medical providers in the state don’t have to end access to their gender affirming programs? Technically yes, but he’s putting places like CHLA in a tough spot to be denied federal funding, and he may not be correct in the future if Congress passes federal law that restricts these types of medical interventions.

What about California’s water policy? That’s another topic we’ve covered in the past several times. President Trump signed an executive order titled Emergency Measures to Provide Water Resources in California and Improve Disaster Response in Certain Areas. Wouldn’t this violate the Anti-Commandeering Doctrine by getting directly involved in how California handles its water? Well, once again this executive order doesn’t direct the state to do anything. It instructs federal agencies like the Department of the Interior to get needed water to southern California, to enhance water infrastructure in the state, and to bolster disaster response efforts.[23] So, California isn’t required to change any of its water policies, but it can’t impede federal agencies from carrying out the President’s direct order.

This framework can be applied to any issue that we see come up. The next time you see a headline about something President Trump has ordered that seems to be directly in opposition to the stance California takes on it, just think through these three questions:

1.     Who is it directed to? What agencies are being ordered to carry out its actions?

2.     Do California’s laws on the topic directly defy federal policy or do they leave the state room to simply not enforce federal policy?

3.     What consequences could direct defiance bring? Like, will certain agencies or institutions lose funding or be subject to prosecution by the Department of Justice?

Response

I want to end with a few points of response.

The first is that while I may not agree with our state on most topics, like the ones discussed above, I do love and appreciate that our overall form of government protects state’s rights and autonomy. Ultimately, it is the responsibility of the federal government to allow the people to govern themselves, which means that states must have the ability to set their own laws and policies. Now, do I agree with and support the Trump Administration’s policies over California’s? Absolutely. But we don’t change California by taking a top-down, big government approach.

Which leads to my next point, which is that the way we DO change California is by changing public opinion. We have to show our fellow Californians why the policies being passed by not only the Trump Administration, but by other states like Florida and Tennessee, are better, wiser, and more effective than the policies in place in our state. People need to realize the downstream effects and real-world consequences of the legislation that is in place so that they can decide how they want our state governed and have a clear view as to what they are voting for will actually do to their lives.

Then, it is critical for us to also see clearly what the effects of a conservative administration will have on a liberal state like California. We as conservatives cannot put all our hope in the federal government. Just because Trump is President, and we have a Republican Congress, doesn’t mean California will be saved. It’s up to our state, our representatives, our legislators, and our residents to vote for, introduce, and enact policy that will shape what our state will be. The federal government can only, and should only, do so much. But the power is ultimately with the people. So, our work doesn’t just cease for the next four years. We don’t just breathe a sigh of relief and come back to politics for the next Presidential election. We have to keep showing up, keep understanding what is happening and what impact it will have, and keep pushing forward to make change around us.

We also work to combat the lies and hysteria in the media and around us. There is so much being thrown around about President Trump’s actions being unconstitutional, or about states standing up against the President and even working to undermine his agenda. But when we investigate the details of the laws and constitution like we have today, we see that states do have rights to pass their own policies, and, at the same time, that federal law will preempt state law. Both of those facts are really important to understand to have an accurate picture of the power of the Trump Administration and what is required of state governments. It’s important to correct narratives that say that Trump is just acting as a dictator and that he is taking all rights away. We can honestly say no, our state is protected, along with every other state, under the constitution to represent the interests of their residents. On the other hand, it’s equally important to look at calls from liberal officials to resist President Trump’s policies and recognize where that impedes federal law, especially for hot button issues like immigration. We can say the state of California is completely within its rights to not assist ICE, but recognize it is illegal to harbor undocumented immigrants and anyone who does that can be prosecuted for it. And just know that this knowledge is powerful; it does change things. Just last week, Governor Newsom is reported to have vowed to veto a bill that, if passed, would prevent California’s prisons from collaborating with ICE.[24] This is just one example of the Governor taking a more friendly approach to the Trump Administration, as he realizes the consequences that could come from refusal to work with the President.

So, as we move forward from just the first month of the Trump Administration, and as we face further battles to come between our state and the federal government, just remember that the most important changes start directly around you. Let’s work together to keep making that change, regardless of what is happening on the federal level.

References:

[1] The White House. “Protecting Children From Chemical and Surgical Mutilation,” January 28, 2025. https://www.whitehouse.gov/presidential-actions/2025/01/protecting-children-from-chemical-and-surgical-mutilation/.

[2] ABC7 Los Angeles. “Children’s Hospital Los Angeles Pauses Gender-affirming Care for New Transgender Patients Under 19,” February 5, 2025. https://abc7.com/post/childrens-hospital-los-angeles-pauses-gender-affirming-care-transgender-patients-19/15869321/.

[3] Levin, Sam. “California Warns Hospitals Not to Withhold Trans Youth Healthcare.” The Guardian, February 6, 2025. https://www.theguardian.com/us-news/2025/feb/05/california-rob-bonta-trans-healthcare.

[4] BBC News. “What Are Executive Orders? The Powerful Tool Used by US Presidents,” January 20, 2025. https://www.bbc.com/news/world-us-canada-69606315.

[5] Chervinsky, Lindsay. “The Executive Order: A History of Its Rise and Slow Decline.” Governing, April 21, 2021. https://www.governing.com/now/the-executive-order-a-history-of-its-rise-and-slow-decline.html.

[6] U.S. National Park Service. “Executive Order 9981, Desegregating the Military,” n.d. https://www.nps.gov/articles/000/executive-order-9981.htm.

[7] National Archives. “Servicemen’s Readjustment Act (1944),” May 3, 2022. https://www.archives.gov/milestone-documents/servicemens-readjustment-act#:~:text=Signed%20into%20law%20by%20President,WWII%20and%20later%20military%20conflicts.

[8] Evans, Farrell. “Why Harry Truman Ended Segregation in the US Military in 1948.” History.com, May 6, 2024. https://www.history.com/news/harry-truman-executive-order-9981-desegration-military-1948.

[9] Ballotpedia. “Presidential Executive Order 12291 (Ronald Reagan, 1981) - Ballotpedia,” n.d. https://ballotpedia.org/Presidential_Executive_Order_12291_(Ronald_Reagan,_1981).

[10] The White House. “Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs – the White House,” January 30, 2017. https://trumpwhitehouse.archives.gov/presidential-actions/presidential-executive-order-reducing-regulation-controlling-regulatory-costs/.

[11] Bureau of Counterterrorism. “Executive Order 13224.” U.S. Department of State, n.d. https://www.state.gov/executive-order-13224/#:~:text=Then%2DPresident%20Bush%20signed%20Executive,the%20evil%20of%20terrorist%20activity.

[12] The American Presidency Project. “Executive Order 13912—National Emergency Authority to Order the Selected Reserve and Certain Members of the Individual Ready Reserve of the Armed Forces to Active Duty,” March 27, 2020. https://www.presidency.ucsb.edu/documents/executive-order-13912-national-emergency-authority-order-the-selected-reserve-and-certain.

[13] Federal Register. “Tackling the Climate Crisis at Home and Abroad,” February 1, 2021. https://www.federalregister.gov/documents/2021/02/01/2021-02177/tackling-the-climate-crisis-at-home-and-abroad.

[14] Mineshima-Lowe, Dale. “USA Patriot Act of 2001.” The Free Speech Center, July 5, 2024. https://firstamendment.mtsu.edu/article/usa-patriot-act-of-2001/.

[15] Alvis, J. David, and Joseph Postell. “Statement on Signing the Detainee Treatment Act.” Teaching American History, June 26, 2024. https://teachingamericanhistory.org/document/statement-on-signing-the-detainee-treatment-act/.

[16] Federal Judicial Center, “Judicial Review of Executive Orders,” n.d., https://www.fjc.gov/history/administration/judicial-review-executive-orders#:~:text=Courts%20may%20strike%20down%20executive,to%20be%20unconstitutional%20in%20substance.

[17] Constitution Annotated. “Amdt10.4.2 Anti-Commandeering Doctrine.” Congress.gov, n.d. https://constitution.congress.gov/browse/essay/amdt10-4-2/ALDE_00013627/.

[18] National Constitution Center Staff. “On This Day, the Supreme Court Reinforces the 10th Amendment.” National Constitution Center, June 27, 2023. https://constitutioncenter.org/blog/on-this-day-the-supreme-court-reinforces-the-10th-amendment.

[19] Levin, “California Warns Hospitals Not to Withhold Trans Youth Healthcare.”

[20] Constitution Annotated, “ArtVI.C2.1 Overview of Supremacy Clause,” Congress.gov, n.d., https://constitution.congress.gov/browse/essay/artVI-C2-1/ALDE_00013395/.

[21] Richer, Alanna Durkin, and Anthony Izaguirre. “AG Pam Bondi Rails Against NY Leaders as She Announces Immigration Lawsuit | AP News.” AP News, February 13, 2025. https://apnews.com/article/justice-department-immigration-pam-bondi-trump-4829db2b93afcfa35194014f160d7edb.

[22] Flynn, Meagan. “Oakland Mayor Libby Schaaf Tipped off Immigrants About ICE Raid and Isn’t Sorry She Did.” Washington Post, October 25, 2021. https://www.washingtonpost.com/news/morning-mix/wp/2018/02/28/oakland-mayor-libby-schaaf-tipped-off-immigrants-about-ice-raid-and-isnt-sorry-she-did/.

[23] The White House. “Emergency Measures to Provide Water Resources in California and Improve Disaster Response in Certain Areas,” January 26, 2025. https://www.whitehouse.gov/presidential-actions/2025/01/emergency-measures-to-provide-water-resources-in-california-and-improve-disaster-response-in-certain-areas/.

[24] Zehra, Ailia. “Newsom Threatens to Veto Bill Limiting State Prison ICE Cooperation.” The Hill, February 14, 2025. https://thehill.com/homenews/5145896-newsom-threatens-to-veto-bill-limiting-state-prison-ice-cooperation/.