What President Trump’s Executive Orders Could Actually Do

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Enacting laws is less fun than it looks. Photo: SAUL LOEB/AFP/Getty Images

President Trump spent his first days in office chaotically unveiling executive orders in an effort to prove he’s making good on his campaign promises. Judging from the stream of unsettling headlines, Trump dealt serious blows to Obamacare, “sanctuary cities,” and immigration policy — all while obsessively poring over photos of the crowd at his inauguration.

While Trump’s orders have led to protests, widespread confusion, and the detention of many people trying to enter the U.S., upon closer examination, he did not instantly undo major elements of the Obama administration with just a few strokes of his pen. The documents were drafted primarily by Steve Bannon and Stephen Miller, the Breitbart faction of Trump’s advisers. Since they consulted with virtually no one, some of the orders are vague, legally questionable, or even impossible to carry out. Here’s what Trump’s first executive orders might actually do.

Note: This post was originally published on January 27, 2017. It has been updated to include Trump’s most recent executive orders.

Restrict Immigration and Refugee Resettlement

What Trump ordered: He suspended the resettlement of refugees in the U.S. for four months, ostensibly to give federal agencies time to develop “enhanced vetting” procedures. Syrian refugees are banned indefinitely. There is also an exemption for “religious minorities” facing persecution by their governments, and Trump said in an interview that Christians would receive preferential treatment.

The order also bars immigration from seven Muslim-majority countries — Iran, Iraq, Sudan, Syria, Libya, Somalia, and Yemen — for 90 days. It applies to people who hold dual citizenship with those countries and another nation.

There were contradictory messages from the Trump administration about whether the order applied to green-card holders. Initially, the Department of Homeland Security said the ban did apply to U.S. permanent residents from those seven countries; then, one day later, the White House said green-card holders were exempt, though they may have to undergo additional screening.

Can he do that? The courts will decide. Over the weekend, federal judges in five states blocked the removal or detention of those who were in transit when the order went into effect. Four states — Washington, New York, Massachusetts, and Virginia — are involved in lawsuits that argue the order is unconstitutional.

On Monday, acting attorney general Sally Yates advised the Justice Department not to enforce the new measures, saying it wasn’t clear that the order was “legally defensible.” Trump responded by firing Yates from her post, saying the Obama administration holdover — in charge until Jeff Sessions’s confirmation — had “betrayed” the DOJ.

The president, however, does have broad powers to regulate immigration — and there is good reason to think that this temporary order is just a first step in Trump’s plan to use those powers aggressively. The Immigration and Nationality Act allows the president to bar any immigrants he considers “detrimental to the interests of the United States.” But experts say the order, which did not go through the normal vetting process, may violate federal and constitutional law.

For starters, the Immigration and Nationality Act also states that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” That applies only to green-card holders, not refugees hoping to come to the U.S.

Add Steve Bannon to National Security Council Meetings

What Trump ordered: It’s typical for presidents to issue orders reorganizing the National Security Council at the start of their term, but putting a political adviser on the Principals Committee is not. While presidents usually want to show that they’re not letting politics affect national security decisions, Trump made Bannon a regular attendee of the Committee, an interagency forum for considering national security issues.

Can he do that? Yes. A tweet by Jonathan Alter sparked reports that an “obscure law” required Bannon to be confirmed by the Senate, but Harvard law professor Larry Tribe told Snopes that’s a misreading of the law. He explained that Bannon has not been made a member of the NSC itself — he’s just been invited to attend meetings of the Principals Committee:

Nothing in the Constitution or in any Act of Congress makes membership in what has been called the Principals Committee, which is formally and structurally not part of the National Security Council but an advisory group hitched to the Council by an invisible cord, a position that mandates the Senate’s advice and consent.

Tribe said he thinks Bannon’s role is “crazy and dangerous,” but it doesn’t appear to violate the law — “though it probably should.”

Meanwhile, Trump downgraded the director of National Intelligence and the chair of the Joint Chiefs of Staff to being optional members. White House Press Secretary Sean Spicer pushed back against criticism of this move, saying the two officials are “at every NSC meeting and are welcome to attend the Principals meetings as well.”

Dismantle the Affordable Care Act

What Trump ordered: Hours after his inauguration, Trump signed an executive order declaring that his administration will “take all actions consistent with the law” to “ease the burden of Obamacare.” It instructs the heads of all executive departments and agencies to “exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay” parts of the Affordable Care Act that put financial burdens on individuals, health-care providers, or states.

Can he do that? Yes, but it’s not clear what “that” is. Only Congress can repeal the Affordable Care Act, but the Trump administration can severely weaken the law by changing how it’s carried out. The Incidental Economist blog compiled a long list of administrative changes that could be made to the law immediately, from reducing reinsurance payments to insurers, to removing the requirement that health plans cover all forms of contraceptive.

Trump is reportedly mulling whether to kill the individual mandate, which could send the individual-health-insurance market into the proverbial “death spiral.” The secretary of Health and Human Services can grant hardship exemptions from the mandate using any criteria he or she wants. That means that, without touching the law itself, the Trump administration could effectively kill the individual mandate by granting an exception to everyone.

As FiveThirtyEight notes, Trump HHS secretary pick Tom Price could have done this even before Trump issued his order, “but in case there was any question, the folks at HHS now have their bosses’ itemized list of priorities.” Of course, Price hasn’t even been confirmed yet, so it may be weeks before we know what the Trump administration will actually do to the ACA.

Cut U.S. Aid to Groups That Provide or Promote Abortion Overseas

What Trump ordered: He reinstated and expanded the “Mexico City policy,” also known as the “global gag rule,” which stipulates that foreign nongovernmental organizations that promote or provide abortion cannot receive U.S. federal aid. Previously, the policy only applied to groups that receive U.S. family-planning funding, but Trump’s version applies to organizations that get global health money as well.

Can he do that? Yes. Ronald Reagan implemented the policy in 1985, and it’s subsequently been rescinded by every Democratic president and restored by every Republican president. Mark J. Rozell, dean of the Schar School of Policy and Government at George Mason University, argued in The Hill that this “showcases the troubles with governing by executive order,” but it’s generally accepted that every president will change the Mexico City policy upon taking office.

The Kaiser Family Foundation explains that Congress could step in, but obviously that’s not going to happen with Republicans in control:

While Congress has the ability to institute the policy through legislation, this has happened only once in the past: a modified version of the policy was briefly applied by Congress during President Clinton’s last year in office as part of a broader arrangement to pay the U.S. debt to the United Nations. (At that time, President Clinton was able to partially waive the policy’s restrictions.) Other attempts to institute the policy through legislation have not been passed, nor have legislative attempts to overturn the policy.

Withdraw from the Trans-Pacific Partnership

What Trump ordered: He signed a brief presidential memorandum declaring that the U.S. is withdrawing from the Trans-Pacific Partnership, and that his administration intends to “deal directly with individual countries on a one-on-one (or bilateral) basis in negotiating future trade deals.”

Can he do that? Yes. The TPP was never ratified by Congress, so Trump’s order was mostly symbolic. The 11 other countries say they want to salvage the deal, but it would have to be revamped significantly and would have much less weight without the U.S.

Build a Border Wall

What Trump ordered: As part of two sweeping executive orders on immigration, Trump said his administration intends to “secure the southern border of the United States through the immediate construction of a physical wall on the southern border.”

Can he do that? Not without help from Congress. Republican lawmakers believe the president has the authority to construct the wall under the Secure Fence Act of 2006, which called for the construction of at least 700 miles of “physical barrier” along the southern border. The fence was never completed, and the Homeland Security secretary could interpret “physical barrier” to mean a big, beautiful concrete wall.

But the wall could cost as much as $20 billion, and Trump can’t come up with that money on his own. He ordered the Department of Homeland Security to look for available funds within its $41 billion annual budget, but the House and Senate appropriations committees would have to approve an internal reallocation of money, and it still wouldn’t be enough to fund the entire project.

Luckily for Trump, congressional Republicans are willing to put a massive amount of U.S. taxpayer money toward the project. House Speaker Paul Ryan said on Wednesday that Congress intends to fund the wall through a supplemental appropriations bill in the spring.

When pressed on how they’d “make Mexico pay for it,” GOP leaders suggested they’d leave that to Trump. “We intend to address the wall issue ourselves and the president can deal with his relations with other countries on that issue and others,” said Senate Majority Leader Mitch McConnell.

End the “Catch-and-Release” Policy

What Trump ordered: His two executive orders on border security said he is terminating the policy known as “catch and release,” in which people caught crossing the border illegally are freed, pending hearings. In order to hold and process them, Trump called for the construction of new detention facilities, the hiring of 5,000 additional Border Patrol agents, and 10,000 additional U.S. Immigration and Customs Enforcement (ICE) officers.

Can he do that? The cost and logistics are daunting. Reuters reports that in the last three months of 2016, 136,670 people were caught crossing the border, and about 48 percent were unaccompanied children or families with children. Existing facilities have about 34,000 beds.

Trump’s order directs his cabinet secretaries to “take all appropriate action and allocate all legally available resources to immediately construct, operate, control, or establish contracts to construct, operate, or control facilities to detain aliens at or near the land border with Mexico.” But he won’t find the money needed for such an enormous undertaking without approval from Congress.

Politico did some rough math, and concluded that Trump’s immigration proposals could increase federal spending by $13 billion a year, not including the wall. The combined budgets for ICE and border protection in 2016 came to $19.4 billion.

John Sandweg, who was acting director of ICE in 2013 and 2014, estimated that Trump’s plan would require four or five times as many detention beds per day, which would cost $10 billion annually. Hiring another 10,000 ICE agents could cost $3.9 billion a year, and adding 5,000 Border Patrol agents could add $900 million annually.

Immigration courts are already severely backlogged, and it’s illegal to keep children in immigration detention indefinitely. Even if Congress gave Trump the money, the time and effort it would take to establish new detention centers, train new officers, and fend off legal challenges would be enormous. “I just view this as a political document more than anything,” Sandweg said of the executive orders.

End “Sanctuary Cities”

What Trump ordered: Cities and counties that limit their cooperation with federal immigration officials “are not eligible to receive federal grants, except as deemed necessary for law-enforcement purposes.” As Vox notes, nothing has been defunded yet:

Instead, it tells the secretary of homeland security and the attorney general to make sure that no jurisdiction getting federal grants is getting in the way of law enforcement, and lets the attorney general pursue enforcement actions against jurisdictions that do. There are at least 39 cities and 364 counties that count themselves as sanctuary jurisdictions, according to the Immigrant Legal Resource Center.

Can he do that? It’s unclear, and it would take a massive legal battle to find out. The Trump administration could try to sue the cities for violating federal law, but the federal government can’t force state and local law enforcement to enforce federal law. In 2014, a federal appeals court ruled that local police do not have to hold undocumented immigrants for ICE agents.

The Trump administration could try to coerce sanctuary cities into following the law by withholding certain federal grant money. Some federal money is distributed by Congress, but Republicans may go along with Trump’s effort. Several Republican lawmakers have tried to pass laws that would cut money for sanctuary cities in recent years. Even if Congress doesn’t approve, the Trump administration could withhold the grants administered by federal agencies, potentially cutting off funding for various local programs.

Mayors from several cities — including New York, Chicago, and Los Angeles — have already vowed to stand up to Trump’s crackdown on sanctuary cities, but on Thursday, Miami-Dade County mayor Carlos Gimenez signed an executive order ordering his corrections department to comply with all ICE requests. He said his county can’t afford to lose out on the $355 million it’s set to receive in federal funding next year.

Advance the Keystone XL and Dakota Access Pipelines

What Trump ordered: He reversed decisions made by the Obama administration by inviting the TransCanada Corporation to “promptly resubmit its application” to build the Keystone XL pipeline, and directing the Army “to review and approve in an expedited manner” the last section of the Dakota Access pipeline. He told reporters he would “renegotiate some of the terms” and ordered his secretary of commerce to develop a plan to ensure that all of the pipelines are built and repaired using U.S.-made steel.

Can he do that?: Trump can help advance the pipeline projects, but even he acknowledged that it wasn’t a sure thing. “We’ll see if we can get that pipeline built,” he said. “A lot of jobs.” Renegotiating the terms of the deals would be a lengthy and legally questionable process — plus he would have to contend with the environmentalists and Native American rights activists protesting the construction of the Dakota Access pipeline.

Legal experts tell CNN that the executive order may also violate the constitutional right to due process and the Establishment Clause. While the order says nothing about banning Muslims, Trump and his surrogates have made public comments suggesting that was the aim. The courts could rule that the order discriminates on the basis of national origin or religion, while offering no rational justification for why people from the seven countries pose a particular terror threat.

Trade-policy experts have criticized the order that the pipelines be constructed from U.S.-made material, as it would violate international trade laws that say a government can’t treat foreign and domestic companies differently.

“First of all, this is private investment, so there’s no legal authority for the government to require a private company to use domestic materials,” Dan Ikenson, director of the Cato Institute’s Herbert A. Stiefel Center for Trade Policy Studies, tells CNBC.

“Is it good policy to have the president dictate where U.S. companies buy their inputs? No. I think that’s terrible. I think that’s dictatorial. I think it’s very bad precedence.”

What President Trump’s Executive Orders Could Actually Do