The World This Week: Trump’s Executive Orders
Trump seeks to keep out dangerous immigrants, rejuvenate the energy industry and bring back manufacturing while waging war on the media and extolling torture.
As president of the United States, Donald Trump has got off the blocks more explosively than Usain Bolt. Proclamations, memoranda and executive orders have been flying off Trump’s pen. This author has been speaking to constitutional lawyers, academics and historians to find out if there is any precedent to this frenetic activity in the White House. Their unanimous answer is that Trump is following no precedent. Like the Starship Enterprise, Trump is exploring strange new worlds and is boldly going where no president has gone before.
In his campaign promises, Trump vowed to cancel all of Barack Obama’s “illegal and overreaching executive orders.” Ironically, Trump himself has been issuing executive orders with a vengeance, raising concerns about their propriety and constitutionality. Outrage and mass protests have resulted not only in the US, but around the world.
What is going on? What are executive orders? Why do Trump’s orders matter?
DECREES DESPITE A MINORITY MANDATE
Trump won the presidency with a minority of the vote. To say he is a divisive figure would be an understatement. Trump is an anti-establishment candidate who first took the Republican Party hostage, slaying among others Jeb Bush of a fabled clan that has produced two presidents. He then knocked out Hillary Clinton who had all the advantages of a huge donor network, party machine and mainstream media support. In numerous editions of The World This Week, this author argued that Trump won because Americans are hurting and their political elites have ignored them at their peril.
Now, Trump is firmly in the saddle and has a Republican majority in both the Senate and the House of Representatives. He can push through an aggressive legislative agenda. Instead, he has unfurled a flurry of activity without consulting Congress. In any case, executive orders have always been controversial because they do not require congressional approval. The US Constitution has enshrined the separation of powers with the legislature making the laws, the president executing them and the judiciary acting as the referee to ensure that everyone is playing by the rules. Trump’s unilateral decisions bypass Congress and are raising fears that he might rule by decree, threatening American democracy.
Trump’s supporters point out that presidents have always issued executive orders. As expected, Fox News has issued a robust defense of these orders and, as Bill O’Reilly reassures, these are not set in stone. Such orders can be revoked, modified or expanded. Passing laws is like making sausages and getting bills through the floor takes time. Executive orders allow the president to govern without being paralyzed by the legislature. Franklin D. Roosevelt used them a staggering 3,721 times in his 12 years, but it might be important to remember that he was in office during the Great Depression and World War II. Barack Obama and George W. Bush issued 279 and 291 orders respectively. They were controversial too, but Trump has instituted “a shock and awe strategy” that is shaking up the little town on the Potomac and the rest of the world.
OBAMACARE, INFRASTRUCTURE AND SANCTUARY CITIES
The best place to examine Trump’s executive orders is the White House website itself. On January 20, the very day he took oath as president, Trump signed an executive order minimizing the economic burden of the Patient Protection and Affordable Care Act, the controversial Obamacare legislation.
Pending repeal of Obamacare, states can minimize “economic and regulatory burdens” while also work toward creating “a more free and open healthcare market.” It also gives federal authorities the right “to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State” or increase costs or regulations for patients, health care providers, insurers and pharmaceutical or medical device companies.
In brief, Trump has torpedoed the hull of the ship. USS Obamacare is damaged it if not sunk as yet.
On January 24, Trump issued the executive order expediting environmental reviews and approvals for high-priority infrastructure projects. The order pointed out that infrastructure investment strengthens the economic platform of the country, “makes America more competitive, creates millions of jobs, increases wages for American workers, and reduces the costs of goods and services for American families and consumers.” From now on, if the White House decides a project is high priority, then approvals from various agencies will be fast tracked. Namby-pamby environmentalists can shriek their lungs out, but their protests will not matter one jot.
On January 25, the White House unfurled two executive orders. One of them is supposed to enhance public safety in the interior of the US. Trump ordered strict enforcement of immigration laws and the deportation of illegal aliens, especially those that threatened national security or conducted criminal activity. He declared: “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States.” The president went on to declare that those violating federal law would not be getting federal funding. In Trump’s words, sanctuary jurisdictions are causing “immeasurable harm to the American people and to the very fabric of our Republic.”
Sanctuary jurisdictions comprise more than 400 cities, such as Los Angeles, San Francisco, Seattle, New York and Boston, which do not allow officials to inquire about an individual’s immigration status. Los Angeles began this practice in the 1979 by telling its police force not to question people solely to determine their immigration status. Today, federal immigration laws exist on paper but are not enforced in these over 400 sanctuary jurisdictions. Local governments in these jurisdictions turn a blind eye to federal immigration laws to develop greater trust between the government and local communities, which helps keep tabs on public health issues as well as control crime. Conservative critics rail against them for flouting the law, appeasing minorities and winning their votes through identity politics.
Trump’s war on sanctuary jurisdictions has caused alarm. Unlike the United Kingdom, France or even India, the US is a truly federal country. States’ rights are a big deal and local areas guard their autonomy zealously. It is not without reason that Alexis de Tocqueville marveled at local self-governance during his travels through the country and was adamant that it made American democracy work. Trump’s executive order aims a salvo at the cherished American ideal of federalism itself that many in his party support religiously. Furthermore, many like Garrett Epps believe Trump’s executive order to be sloppy and unconstitutional.
Epps’ sophisticated argument in The Atlantic draws upon on two major cases. In a 1997 case, Printz v. United States, the court held that the federal government may never order local officials to enforce federal law. In the famous 2012 Affordable Care Act case, National Federation of Independent Business v. Sebelius, the court held that the government cannot use the threat of large funding cuts to “coerce” states into adopting federally demanded policies.
The so-called sanctuary jurisdictions will fight back and challenge this executive order. The matter will go all the way to the Supreme Court and will define federalism in the US.
THE WALL AND IMMIGRATION BAN
The second of the January 25 executive orders has caught media attention. It deals with border security and immigration enforcement improvements. In the order, Trump declares that illegal aliens are “a significant threat to national security and public safety.” He goes on to say that many of them “seek to harm Americans through acts of terror or criminal conduct.” Therefore, Trump has directed all enforcement agencies to start detaining illegal aliens and kicking them out of the country.
More importantly, the new president has ordered “the immediate construction of a physical wall on the southern border” to prevent illegal immigration, terrorism and trafficking of drugs or human beings. The US will now build a 2,000-mile barrier and Trump insists that Mexico is going to fork out the cash “one way or another.” This is his longstanding campaign promise. Those who were terribly upset by Trump’s proposition forget that George W. Bush signed into law The Secure Fence Act of 2006. Like Trump, Bush was seeking to control American borders and reform the country’s immigration system. Trump might do well to remember that Bush failed miserably.
As per the BBC, a barrier already exists for a third of the southern border with Mexico. Trump might build on it or construct something entirely new. Construction on the wall will begin immediately with $100 million from the Department of Homeland Security, but Trump will need billions of dollars from Congress and the government will have to seize plenty of private property as well. The legal, logistical and political challenges to the wall are formidable. Yet Trump is riding a wave of concern about drug trafficking, crime and illegal immigration. Many who voted for him repeatedly chanted “build that wall” and are delighted that Trump is sticking to his promise.
Mexicans are not thrilled though. Enrique Peña Nieto, its feckless president, has cancelled his visit to Washington, DC. He has vowed that Mexico will not pay for the wall. Trump has already floated the idea of 20% tax on Mexican imports that is not quite legal under treaties the US itself has drafted. Unsurprisingly, congressmen and senators are hopping like cats on a hot tin roof at the suggestion of arbitrary tariffs and the prospects of a looming trade war with Uncle Sam’s third largest trading partner.
As if the wall was not enough, on January 27, Trump issued an executive order aimed at “protecting the nation from foreign terrorist entry into the United States.” He asserts that “deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest” increase the likelihood that terrorists from these countries will use “any means possible” to enter the US. Trump proclaimed in this order that “the entry of nationals of Syria as refugees is detrimental to the interests of the United States.” Trump also suspended visas and immigration benefits to “Nationals of Countries of Particular Concern” for 90 days.
It turned out that nationals of only seven countries could not travel to the US: Iraq, Iran, Syria, Somalia, Sudan, Libya and Yemen. This order created pandemonium and panic. Those with green cards might also be affected. All countries on the list except for Iran are experiencing conflict and all of them are Muslim. On his campaign trail, Trump suggested banning all Muslims from traveling to the US and proposed killing the families of terrorists.
By his campaign standards, Trump’s executive order is rather mild. It does not ban Muslims per se. The most populous Muslim-majority countries are Indonesia, Pakistan and Bangladesh. None of them are affected by the ban. Yet many fear this may be the start of excluding Muslims from entering the US in much the same way as the Chinese were kicked out of America by the China Exclusion Act of 1882, which was supposed to be temporary but lasted until 1943.
On January 28, Trump signed yet another executive order banning all those appointed to office from lobbying activities for five years after they leave. It is part of his campaign to “drain the swamp” of Washington that many rightly believe to be wallowing in corruption, intrigue and primacy of special interests. NPR points out that Trump has drawn heavily on previous executive orders by Bill Clinton and Barack Obama. Clinton, who is often referred to as Slick Willie, revoked his order in his final weeks in office so his colleagues could turn into gold diggers once they left office. Even Obama granted waivers to his order. Time will tell if Trump can walk his talk when his subordinates leave government and try to cash in later on.
TRADE AND ABORTION OUT
Executive orders are not the only thing that Trump is signing. Trump has signed a memorandum formally pulling the US out of the massive 12-nation Trans-Pacific Partnership (TPP) trade deal. Obama and numerous American diplomats spent plenty of time, money and energy to negotiate a deal that comprises 40% of the global economy. This was part of the so-called “Asia Pivot” and a central tenet of the Obama Doctrine, which sought to disentangle the US from the messy Middle East, pivot American focus to Asia and manage the rise of China. Trump has now thrown the Asia Pivot overboard into the sea.
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Trump has also ordered a federal hiring freeze that covers all arms of the government except the military. He has got off to a flying start in delivering the small government that Ronald Reagan promised but did not quite manage to deliver, at least as far as the number of federal employees go. Trump has brought back Reagan’s “Mexico City” policy that barred aid to any group that provides or “promotes” abortion overseas. This means that if an African or Latin American organization uses US aid to provide contraception to women, it will have to stop taking aid from others to conduct abortions. It will also have to stop providing women with referrals, counseling or information about abortion, even in the case of rape, incest and danger to the mother’s life.
Fair Observer’s November edition of Africa This Month warned that Trump might institute such a policy, and it has sadly been proven right. Prior to Trump, George W. Bush followed the same policy and its effects, as the article pointed out, were catastrophic. In writing that edition, the authors were surprised to discover research at Stanford that found that Bush’s policy led to an increase in abortions because it restricted access to contraception and increased unwanted pregnancy.
In any case, it is always men who seem to take such decisions. The Catholic Church is still an all-male club when it comes rule-making, and its stand on abortion is unsurprisingly still hardline. Martin Belam and Rhiannon Lucy Cosslett of The Guardian rightly remark that the photo of Trump and his seven men signing an order as to what women could do with their reproductive organs was highly patriarchal and fundamentally unjust.
PIPELINES AND TORTURE IN
Trump has cleared the way for the construction of the 1,179-mile cross-border Keystone XL and the 1,172 mile Dakota Access oil pipelines from Alberta to Nebraska and North Dakota to Illinois respectively. The Sioux protested with great gusto against the second pipeline, but that is not going to stop the pipeline with Trump in charge. His mandate that all pipeline projects must use American-made steel might slow down projects and drive their costs up. It is not only another blow against trade and a reversion to protectionism, but also a rejection of Obama’s environmental policy and an embrace of fossil fuels.
Trump has also ordered a regulatory freeze. Climate change has disappeared from the White House website. Instead, the new focus is on “reducing burdensome regulations on our energy industry.” The White House chief of staff has come out with a memo freezing new or pending regulations. According to The Washington Post, this memo sinks four Obama rules promoting greater energy efficiency. Another memo by Trump himself, orders the secretary of commerce to streamline and reduce regulatory burdens on domestic manufacturing.
Apart from his formal actions, Trump is setting a toxic tone as the world’s most powerful man. In the May 1, 2016, edition of The World This Week, this author argued that Trump has a point. Globalization has led to winners and losers. The former never compensated the latter and big banks profited from the suffering of the common man. Trump is riding on the anger of a large section of the US that feels exploited, ignored and betrayed. The tragedy is that he is fanning that anger and using rhetoric unbecoming of his office.
Right at the outset, Trump’s sidekicks claimed that a record crowd attended his inauguration despite evidence to the contrary. His chief spokesman harangued reporters and launched a blistering attack on the media with an aggression that has not been seen before. Trump has publicly obsessed over voter fraud and has repeatedly claimed that millions of illegal votes were cast, undermining faith in American democracy.
Finally, he has argued that torture works. In Trump’s eyes, if the Islamic State is cutting off heads, then Americans must retaliate with waterboarding at least. He misses the irony that Uncle Sam sentenced many Japanese officers to death for practicing waterboarding. Trump wants “to fight fire with fire” without temperance, morality or mercy.
Good luck America!
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The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.
Photo Credit: DonkeyHotey