Trump’s Executive Orders Might Hit Serious Legal Obstacles Before Having Any Effect
A new Politico report finds that President Donald Trump’s steady stream of executive orders could face major hurdles when it comes to implementation, because they were drafted with little input from the relevant government agencies. Almost all of the headline-grabbing orders were seen by experts to have some clear or potential conflicts with existing laws.
President Trump’s biggest campaign promise, that he would build a wall along the border with Mexico, may be impossible to fulfill solely through an executive order signed Wednesday. Trump has promised that Mexico would pay for the wall, but there’s disagreement about exactly how that would happen, and Mexican President Enrique Peña Nieto this morning cancelled a meeting that might have provided answers. Experts told Politico that funding even a portion of the wall through the U.S. budget would require Congressional approval.
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Questions also loom over an order to restart construction of the Keystone XL Pipeline, which was apparently issued without input from experts in the State Department. Such consultation could have clarified the process of restarting the project in the face of builder TransCanada’s ongoing $15 billion NAFTA suit against the U.S. for canceling the project. A former State department lawyer who oversaw the Keystone project described the lack of consultation as “reckless.”
Intelligence officials are also said to have been completely surprised by a leaked draft of an executive order that would push the CIA to reconsider its current stance against interrogation techniques considered torture. Both Defense officials and lawmakers have said an executive order alone could not override existing laws on torture.
That order has not been signed, however, and White House press secretary Sean Spicer has denied that it is genuine.
Legal and administrative uncertainties also surround Trump orders that have purported to take federal funds from so-called “sanctuary cities,” that begin the dismantling of the Affordable Care Act, and that compel government contractors to use domestically-sourced materials.
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Legal experts speaking to Politico questioned not only the efficacy of the executive orders already issued by Trump, but the viability of the administration’s overall approach. Georgetown law professor David Vladeck said the rush of orders without careful review makes errors likely, and that “a government by edict is not a sustainable idea.”
While critics often blasted the Obama administration for extending its power through executive orders, Politico writes that those were drafted through weeks of consultation with agencies, lawmakers, and even outside lawyers. That careful procedural approach was key to Obama’s effectiveness in bypassing a recalcitrant Congress.
Republican Senator John Thune, on the other hand, sees the Trump administration’s full-steam-ahead approach simply as the opening push by a new regime, saying that “you’ll see, probably, better coordination with time.”