Critics of the imperial presidency are having their heyday. They would warn against the rule-making by fiat of a single powerful president. To some extent, the great presidential power might have been made necessary by the ineptitude of US Congress to pass more laws to address the challenges the country is facing: universal health care, free higher education, a moratorium on student debt, a massive job creation program, scaling down of the military and covert forms of military aggression (drone warfare, special ops), just to name a few. That was never going to happen under the Obama administration, which by its temperament was moderate in policy. And it certainly wasn’t going to happen in a Republican Congress, which declared its goal to block passage of any meaningful legislation that could benefit the American people.
Yet, here we are. We have a deranged, narcissistic new US president, who has not been wasting any time to sign executive orders in the fulfillment of his campaign promises. I go through it in order, laying out the precise problems with each order, and then reflect on the institution of executive orders. Despite the deranged nature of the current president, I defend the importance of executive orders when Congress makes law-making so difficult, because (1) laws require both chambers’ approval, (2) laws often need bipartisan consensus to pass, (3) the dynamic of wealthy people and corporations influencing the political process in Congress make any populist program a la Bernie Sanders unfeasible to pass.
The discussion of the Trump executive orders does not cover the presidential memoranda, which are also worth remarking on: Trump’s memoranda approve two oil pipelines (Dakota Access and Keystone), falling in line with his love of oil companies (Rex Tillerson, Exxon Mobile CEO, was appointed secretary of state). This bodes ill for the environment and will accelerate the troubling effects of climate change. He banned the use of federal dollars for abortion-related counseling in poor foreign countries, which will have a negative impact on the health and well-being of women of childbearing age in those countries.
He withdrew from the TPP, which I think is so far the only positive policy. The Obama administration had sold the TPP as the US’ ability to write the trade rule in the Pacific as opposed to China. But in this geopolitical game the administration was ignorant of the harm that a trade treaty imposes on people, because the TPP favors investors with an investor-dispute-settlement system. If people consider this “just”, they should think twice because the trade settlement would override national jurisdictions via international tribunals that are run by corporate lawyers. It is like being a thief and have your criminal case be handled by your brother. Generally speaking, there is not much appetite for trade treaties in the developed world, because the mass of workers know they won’t benefit from it. Xi Jinping had recently appeared in Davos to defend free trade, but he knows that the Chinese economy is still most likely to benefit from such trade the most. I don’t support a high tariff policy for the US and generally favor free trade, but thus far the labor losses were concentrated in the high-wage locations.
On to the executive orders: On his first day in office (January 20), Trump signed an executive order (#13765) to declare his intent to repeal the Affordable Care Act, which currently provides health insurance to 20 million people. The order also prescribes that the health secretary has the right to block any provision, which would add costs to the states and to the people insofar as it does not subvert the law. But we can imagine how the order will subvert the law.
The ACA is a rather fragile law, which requires the full determination of the administration for it to work. If any funding for the subsidies were restricted or if the website on which the exchange operates did not work so smoothly, then people’s health insurance access would become limited. That may increase the ire among the population and might make them, ironically, support an ACA repeal, but the bigger problem is that the Republican Party really has no intention to create a new health care plan. The dilemma is they can’t really say they want to return to a status quo ante, where the denial of coverage for pre-existing conditions and a lifetime limitation on insurance reimbursement would come back. The only positive way out is a single-payer system, which is, however, not even being debated. In the mean time, the ACA is piecemeal dismantled without any more positive prospects. The Republicans don’t have better ideas on health care, because the ACA comes from the Heritage Foundation and the Republicans themselves (Reich 2013).
The next executive order (#13766) was signed on the 24th and intends to expedite the environmental review process for public infrastructure projects. The process of approvals by the federal administration shall be limited to only 30 days. This might be considered a positive executive order, but one shall think carefully what the impact on the environment is going to be. The order does not say anything about increasing funding for the agency responsible for implementing the environmental reviews, and to the extent that administrators will now be forced to expedite the review process, they will be less likely to be careful in safeguarding the environment.
The next two executive orders (#13767; #13768) on the 25th mandate an expedited process for the deportation of illegal or undocumented immigrants, especially those committing acts of violence or felony. Any federal funding for sanctuary cities (local jurisdictions that refuse cooperation with federal officials to identify undocumented immigrants) shall be “reviewed”. 10,000 federal officials shall be added to enforce the expedition of deportations. The first order sets up the southern border wall with Mexico. The deportation of undocumented immigrants has the precedent in the Obama administration, but is unfortunately stepped up under the Trump administration. A more rational solution would be to create a path to citizenship for undocumented immigrants, who are easily scapegoated, because they currently do not have any voting rights (though their US-born children do, but they are too few and many of them still not voters).
The more troubling part is the Mexican border wall, which the Mexican administration has repeatedly refused to pay for, but has been part of Trump’s campaign plank. The trouble is not only on the human level (e.g. the difficulty of reuniting separated families), but also on an international relations level. It is troubling that the US administration would risk to deteriorate economic and political relations with Mexico, the closest next-door neighbor, by building this inhumane wall. The administration had also suggested that Mexico will pay for the wall, and that shall happen via a 20% import tariff on Mexican goods. This may affect Mexican producers, but it will also affect US companies deciding to build their products in Mexico and bring it back to the US. More importantly, it will affect US consumers through the higher prices they will pay in the market. These higher prices will more than offset any gains of protectionism, which might help only a few domestic producers.
On the 27th, Trump signed another executive order (#13769), which banned his highest federal staffers from taking on any lobbying position for five years, but critics already say that this order is a weakening of ethics standards for federal officials because it strips a public disclosure requirement, which makes it difficult for the public to determine whether the stricter guidelines will be enforced (Gold 2017). They probably won’t be. It is also hard to think that a cabinet of billionaires and lobbyists will be able to disassociate itself with any conflicts of interest. Trump’s cabinet has more wealth than the bottom 1/3 of the US population combined (Calfas 2016), so much for “taking care of the forgotten men and women” and “draining the swamp”.
In the newest executive order also signed on the 27th (“Protecting the Nation from Foreign Terrorist Entry into the United States”), which has been the most controversial, the US suspends the refugee program for 120 days and bars nationals of six countries (Iraq, Iran, Libya, Somalia, Sudan, and Yemen) for 90 days and from Syria indefinitely, regardless of visa. Initially, the Department of Homeland Security (DHS) included current green card holders as well, which was just reversed earlier today. The ban does not affect dual nationals of those seven countries and the US, but does affect dual nationals of those seven countries and any other country. Trump must have thought that the Muslim ban would really work well with his white working class supporters, many of which have no sympathy with foreigners and refugees that they either perceive to take their jobs and benefits or simply don’t know anything about.
But this time the country was no longer silent. People gathered around airports to carry out mass demonstrations against federal officials, who held hostage the affected people and denied their entry into the US. Don’t forget that international airports tend to be located in the larger cities that overwhelmingly vote Democratic and oppose Trump vigorously. The cities are the base for anti-Trump resistance, which will be way more grassroots than the billionaire-funded Tea Party. Liberal Congress members, governors and mayors showed up at the airport to join the protests. Social media feeds are filled with a passionate condemnation of the new president’s executive order. The ACLU and other civil rights organizations filed a lawsuit on the eve of the 27th. The next day, New York federal judge, Ann Donnelly, issued an order to release the held-up refugees (though DHS continues to insist on executing Trump’s order).
The morality is easily stated: how fair is it in the name of “protecting against terrorists” to target innocent refugees fleeing from a civil war and other civilians (students, scholars, business people, workers), who have nothing to do with terrorism? How can the US claim it is the land of the free and the home of the brave, when it excludes people, who have been playing by the rule? (NB: it takes 2 years to receive US security clearance for refugees.) How much is the US guarding against terrorism, when rejected individuals return to their country, develop distrust against the US and might become receptive to the terrorist preachers?
The US administration is setting a dangerous precedent of excluding people based on their religious belief and their country of origin. For the latter case, we unfortunately know that there is a precedent with the Chinese exclusion act of 1882, which barred the entry of Chinese nationals into the US and was not loosened until the Magnuson Act of 1943. For the former case, I have not heard of any religious ban, even though for most of its history, the US did tend to favor immigrants from Christian-majority countries. For that reason, the Trump administration defended the order by saying that the ban had nothing to do with religion, but it was about ensuring national security procedures were in place before resuming the entry of such nationals (Schultheis 2017).
The administration can also claim that not all majority-Muslim country nationals (e.g. Turkey, Malaysia or Saudi Arabia) were banned from entering the US. What is interesting to note, however, is that those Muslim countries were exempted from the ban, which the Trump organization does business with (Painter and Eisen 2017). It shows that Trump is incapable of separating himself from his business interests, speaking of ethics standards. The Bush and Obama ethics lawyers (Painter and Eisen, NYT, Jan. 29, 2017) write, “It appears that immigrants from countries that can afford to do business with the Trump organization are free to come and go from the United States. Immigrants from countries that cannot afford such transactions may very well be detained at the airport and sent home, where some may perish.”
There is no doubt that the administration is specifically targeting Muslims, because Trump noted his preference for Christian refugees (Schor and Kim 2017). He is making partially good on his campaign promise, which is driven by fear and hatred of Muslims and refugees. The bigotry is massively escalating under the new Trump administration that does not offer much social protection for what he had called “the forgotten men and women” (Killian 2017), but instead words of resentment against the outsiders, who are easy prey as they are not numerous or influential enough to defend themselves. To ban any Syrian refugees from entering the country is irresponsible insofar as American bombs and gun exports to Syria have contributed massively to the violence and civil war in the region (see the “Assad must go” line by Obama, Clinton and Kerry), and taking on even just some of the displaced civilians is the fair albeit insufficient compensation for the carnage that the US had helped to create in the Middle East.
Instead, the Europeans (who did their fair share of bombing) have been held responsible for accepting many of the refugees, while an even greater share ended up with Syria’s immediate neighbors: Jordan, Lebanon and Turkey. I understand that the new administration is not responsible for the mess in Syria, but given that Trump had authorized continued bombings in Yemen (Ackerman 2017) there is a tremendous amount of policy continuity from the old administration. The US bombs the Middle East and takes no refugees, which is the most hypocritical foreign policy position of all countries.
What’s the way forward? What makes me quite hopeful is that the enormous public pushback against the Trump administration galvanizes the pushback against the Trump administration in the coming months and years. Continuous mass mobilization might result in calls for impeachment or other forms of expression to prevent the negative excesses of the current administration. There is a natural danger and fear that not much will happen as time goes on, because Trump might hit the heavy targets early on in his administration, but then rule quietly. That could, in fact, be the best prospect for the country if that were to happen. I doubt it, though.
What to me is the most scary is that while the media and the public will be so obsessed by the outrageous statements and actions of Trump, his billionaire cabinet and the Republican Congress can quietly work on their real objectives: to defund the last pillars of the New Deal social safety net and empower billionaires with more tax breaks and favorable policies. The rather dystopian vision for this country is that income inequality will become larger, while the common people are so distracted by either attacking a minority group or having to waste their energy to defending this group. Historically, only a civil war or a foreign war can mitigate this powder keg.
The question as it stands from a constitutional viewpoint is whether the president should have such latitude in executive power. I would still say yes, because the constitutionality of particular decisions would still have to pass the test of judges, virtually all of which had not been appointed by the Trump administration (which will change as time goes 0n). But given that most federal judges stay for a long time (there is no term or appointment limit), Trump will not be able revamp the entire judicial system all at once (there are over 3,200 federal judges). In addition, the country does have a need for a powerful president if legislating in Congress is made complicated by the three obstacles I had outlined, i.e (1) laws require both chambers’ approval, (2) laws often need bipartisan consensus to pass, (3) the dynamic of wealthy people and corporations influencing the political process in Congress make any populist program a la Bernie Sanders unfeasible to pass.
I know there will be people, who will attack me for sponsoring a “benevolent dictator”, when our dictator is everything but benevolent. In countries, where authoritarian rule is way more harmful for individual freedom, expression and dignity, the dictatorial powers are so bad that constitutional limitations on their power would make sense (though it would remain inefficacious if the norms and traditions of a country are stacked against a free and democratic order). But I should remind people of what the alternative is to weaken the powers of the president: to have a system that makes it really difficult to change the country for the positive. A Sanders presidency, for instance, could have changed the political dynamic massively even with a Republican Congress. While much of what Sanders campaigned on are spending programs that require Congressional approval, he could sign executive orders that tilt the balance in favor of working people without the xenophobia that we see with our current president. In that sense, the flaw is not exclusively to be found in a given institution, but in what individual is put into the position of responsibility.
We can see today all the negative implications of an imperial presidency with a leader, who questions the foundations of US values and norms like few previous presidents. But it is the immorality of the leader and not the institution that poses problems to us. The country can only hope to fight back when mass mobilizations don’t abate. We have no other choices in these dark days ahead.