DONALD TRUMP has not wasted time
fulfiling campaign promises. In just his first week as America’s 45th
president, Mr Trump signed executive orders and memoranda freezing federal
hiring, backing out of the Trans-Pacific Partnership, defunding “sanctuary
cities” that protect unauthorised immigrants, undermining Obamacare, restoring
the “global gag rule” on abortion counselling, restarting the construction of
two controversial oil pipelines through Native American lands, building a wall
on the nation’s southern border, blocking Syrian refugees and residents of
several majority-Muslim countries from immigrating to the United States and
slashing regulations on businesses. These moves have provoked fierce
criticism from Democrats and studied silence from most Republicans. What are
executive orders, and what limits a president’s authority to issue them?
Only Congress can make laws; it is
the executive branch’s duty to enforce them. Article II of the constitution
specifies that presidents "shall take care that the laws be faithfully
executed", and they take an oath to do just that on inauguration day. But
as John Locke pointed out in his “Second Treatise of Government,” gaps and
ambiguities are hallmarks of written law. “[A] latitude”, Locke wrote, must be
“left to the executive power, to do many things of choice which the laws do not
prescribe”. When on January 25th he ordered the erection of a wall on the
Mexican border, for example, Mr Trump claimed to be acting under the
Immigration and Nationality Act and two other statutes. This move, he wrote,
was designed to protect America’s “safety and territorial integrity” and to
“ensure that the nation's immigration laws are faithfully executed”.
When a president’s executive order
crosses into the realm of policymaking or violates the law, lawsuits pop up.
Barack Obama’s 2014 decision to shield the parents of American citizens from
deportation, for example, was halted by a federal district judge in Texas
before it could get off the ground. (The Supreme Court later split 4-4 on
whether Mr Obama’s order exceeded his authority, leaving the injunction in
place.) Legislative officials sometimes rise in opposition, too. Pre-empting a
rumoured order restoring the use of torture as an interrogation technique for
suspected terrorists, John McCain, a Republican senator, said that Mr Trump
“can sign whatever executive orders he likes. But the law is the law. We are
not bringing back torture in the United States of America”. Other legislators will
be keeping an eye on Mr Trump’s use of the presidential pen. In questioning
Jeff Sessions, Mr Trump’s pick for attorney general, Ben Sasse, a Republican
senator from Nebraska, noted his disdain for Barack Obama’s use of the
privilege. Mr Sasse signalled that he would not countenance an imperial Trump
presidency, either: the 44th president "exacerbated...political
polarisation", he told Mr Sessions, "by saying he didn't have legal
authority to do things and subsequently doing exactly those things"; it is
a "crisis", he continued, "when kids don't understand the
distinction between the legislative and executive branches".
Few presidents hesitate to put
their executive power to quick use. Mr Obama issued fewer orders than most,
averaging 35 a year (compared to Franklin Delano Roosevelt’s 307, the peak, and
36 and 46 for George W. Bush and Bill Clinton, respectively). But Mr Obama came
out swinging, too, putting his name to 17 orders during the first month of his
presidency. Not every signature bears fruit: Barack Obama ordered the closure
of the Guantanamo Bay detention centre on January 22nd, 2009, a facility that
still housed 41 inmates when he left office. The boldness of Mr Trump’s volley
of orders in the opening days of his presidency may be similarly tempered, and
the entry ban has already met with judicial resistance. Further court
challenges are likely: threatening sanctuary cities with a loss of federal
funding may violate the Tenth Amendment and the abortion gag rule runs up
against the First.
No comments:
Post a Comment