Immediately after the election of President Trump, I wrote a post about what Trump was likely to do once in office. Many people this week have seemed surprised by Trump’s executive actions, but they conform remarkably well with what I anticipated. In this post I want to summarize what we’ve seen so far and what it indicates about where things are going.
I divided Trump’s campaign pledges into three categories:
- Those that require congressional approval (giving senate Democrats an opportunity to resist).
- Those that require judicial approval (giving the Supreme Court an opportunity to resist).
- Those that require neither congressional nor judicial approval–these are the things Trump can easily do.
I categorized Trump’s pledges accordingly:
Requires Congress:
- Repealing and replacing Obamacare
- Implementing a Romney-style tax plan
- Building a wall
- Repealing Dodd-Frank
- Funding a deportation program
- New restrictions on Muslim immigration or immigration from Muslim-majority countries
- Appointments to cabinet level positions
- Appointing an Attorney General who will attempt to prosecute Hillary Clinton
- Appointing conservative judges
- Any military operation lasting longer than 60 days
- Anything which requires congressional funding
- Eliminating any other regulations explicitly stipulated in existing legislation
Requires the Supreme Court:
- Banning or restricting American Muslims’ travel rights or right to enter the country
- Allowing US states to pass new abortion restrictions
- Allowing US states to pass laws discriminating against LGBTs or reversing gay marriage
- Closing down mosques
- Racial or religious profiling
- Torturing US citizens
- In general most of the social issue concerns people may have
Things Trump Can Do Unilaterally, in Theory:
- Rip up trade agreements (NAFTA, TPP, etc.)
- Rip up the Paris Climate Agreement
- Rip up Obama’s executive orders
- Relax regulations that do not have a strict basis in the text of existing laws
- Interpret existing legislation in more conservative ways
- Take fewer Syrian refugees
- Rip up the Iran Nuclear Deal
- Impose tariffs and import restrictions
- Make Mexico pay for a wall (assuming congress has authorized it) by ripping up NAFTA and imposing tariffs
- Torture foreign nationals outside US soil
- Short duration military operations (less than 60 days)
- Drone strike terrorists’ families (provided they’re not American citizens)
- Deploy nuclear weapons
In particular, I expected Trump would be most successful with these things:
- Ripping up international agreements (Paris Climate, Iran Nuclear, TPP, NAFTA)
- Ripping up Obama’s executive orders
- Relaxing regulatory enforcement within the confines of existing law and interpreting existing legislation in more conservative ways
- Torturing foreign nationals outside US soil
- Taking fewer Syrian refugees
So with all that in mind, let’s take a look at Trump’s executive actions:
The Wall
Trump issued an executive order directing the federal government to begin planning the wall and looking for legally available funding. But this executive order concedes that Trump needs congressional support to get the money:
The Secretary shall immediately take the following steps to obtain complete operational control, as determined by the Secretary, of the southern border:
(c) Project and develop long-term funding requirements for the wall, including preparing Congressional budget requests for the current and upcoming fiscal years;
Until congress allocates this money, the wall cannot go up. Some on the right claim that the 2006 Secure Fence Act might be used to legally justify the use of existing money, but this would be unlikely to survive judicial scrutiny–most of the 700 miles of fencing authorized in 2006 have already been built. It remains to be seen whether congress will pony up the $8 billion to $25 billion required for the wall (depending on whose estimates you take seriously). So I count the wall promise as not yet fulfilled. The executive order also calls for more border agents to be hired to step up enforcement of existing immigration laws, but that’s also subject to congressional funding.
Relaxing Regulatory Enforcement Within the Confines of Existing Law
As expected, there have been a variety of executive orders which effectively command the executive branch to look for legal loopholes that might let the government avoid enforcing current regulations. This includes an order focused on manufacturing, on the environment, and on healthcare. Activist organizations will need to be ready and willing to sue the administration if it oversteps its legal authority in these areas.
Ripping Up Obama’s Executive Orders and Action
As expected, Trump reversed some Obama executive actions that were never protected by legislation. He restarted the Dakota Access and Keystone XL pipelines, and froze all the regulatory rule changes that had not yet been implemented by the Obama administration. He also revoked Obama’s executive action on using federal money to fund safe abortions abroad, restoring the Bush Era “Mexico City Policy“.
International Agreements
I figured Trump would pick one international agreement to dump early on, and sure enough he took out TPP–an easy target, as that deal had not yet been finalized. Trump has talked about NAFTA, but hasn’t touched it yet. There’s been no action yet on the Iran Deal or the Paris Climate Accord. His Defense Secretary has said the Iran Deal must be kept, while Trump has said he has “an open mind” about the Paris Deal. So these agreements may yet survive.
Refugees
As expected, reports say that Trump will temporarily ban refugees and immigrants from a small number of Middle Eastern countries (Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen) until a tougher vetting system can be finalized. Because the ban does not target Muslims specifically it is likely to survive judicial review. The Supreme Court has never ruled against immigration quotas or bans on specific countries–the old quota system from the 20s was repealed by Lyndon Johnson and was never struck down by the courts. Johnson’s new law did not expressly forbid per-country limits, but created numerous visa programs based on merit and eliminated the “National Origins Formula” which had attempted to prevent shifts in the ethnic makeup of the country.
So far, Trump has kept within the lines of what I’ve expected–the action on refugees, TPP, Obama’s executive action, and regulations are all on the list of things I expected Trump to be “most successful” with. Where Trump has strayed outside that list (e.g. the wall), he still awaits congressional approval.
What’s the most disturbing thing I’ve seen so far? The ease with which some deeply unqualified cabinet picks have obtained support from senate Democrats. I expected Trump to nominate some upsetting people, but I thought senate Democrats might offer resistance. Instead some poor choices seem to be making it through easily. Perhaps the worst so far is Ben Carson–a man who explicitly admitted he does not have the skills to run a federal department. He has advanced through committee with the support of Sherrod Brown (D-OH) and Elizabeth Warren (D-MA). Indeed, there is not a single Democratic senator who has not voted to approve at least one Trump cabinet pick. This raises questions about how effective senate Democrats will be in restraining Trump policies which require congress. Senate Democrats often claim the are “saving their ammunition” for the most terrible Trump picks, but there is nothing in the constitution which prevents them from blocking any and all bad picks, and the Democrats have not made it clear which picks they will indeed make a point to oppose.
For those wishing to block the worst parts of the Trump agenda, this is where you should focus your energy–the senate Democrats must be kept in line.
Benjamin Studebaker 