A few months ago, an old hoax became new again. Executive Order 13738 essentially revokes the federal government’s official recognition of the Pledge of Allegiance. Under this fictitious order, it would be illegal for any federally funded agency to display the pledge or for any federal employee to recite, or encourage others to recite, the pledge while on duty. The order also applies to federally funded institutions, such as schools. The penalty would be fines up to $10,000 or up to a year in prison.
While there is no explicit power of the President to grant executive orders, Article II of the Constitution gives a “grant of executive power.” Executive orders are usually used to get around Congress. Although Congress can enact legislation that contradicts the Order, the President can veto the legislation, and then the bill has to be overturned by 2/3 to pass. Another way to get around an Executive Order would be to take it to the judicial branch, which would rule a law constitutional or not.
As a law student, this Order stuck out to me as something that wouldn’t surprise me, with the way politics is happening now. However, I would like to explain why this type of order could never happen. In a few words, the answer is: The First Amendment.
The First Amendment of the United States Constitution states “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.” Everyone knows the first amendment, as it is the first, and arguably the most important right, the founders of this nation wrote. The freedoms guaranteed in the amendment are the freedom of religion, speech, press, assembly, and petition. Many of the most controversial and well-studied cases of legal and historical significance stem from this amendment.
In 1943, in West Virginia State Board of Education, et al. v. Walter Barnette, et al., the Supreme Court of the United States held that The Free Speech clause of the First Amendment prohibits public schools from forcing students to salute the American flag and say the Pledge of Allegiance. While this freedom protects students from being forced to say the pledge of allegiance, it does mean that the President, via executive order can ban people from using their freedom of speech to say the Pledge of Allegiance as they please. In another case, Newdow v. Carey, the ninth circuit found that the teacher-led recitation of the Pledge of Allegiance that includes the phrase "under God" by students in public schools does not constitute an establishment of religion, which would typically be prohibited by the Constitution.
Ultimately, while it would be easy for the President to sign Executive Orders for whatever they want, the system does have built-in safeguards so the President undergoes checks.