Issuing orders

U.S. President Donald Trump signs an executive order to advance construction of the Keystone XL pipeline at the White House in Washington January 24, 2017. REUTERS/Kevin Lamarque

In his first week of office, Donald Trump issued more executive orders than Barack Obama did in his first week.  That was probably deliberate. He wants to be seen as an activist president. Executive orders are generally controversial with the party which does not control the executive, and sometimes with constitutional scholars. The President is head of the executive branch and is empowered to issue orders that are consistent with the powers established by Article II of the Constitution and within the parameters established by legislation.

There is something of a consensus among commentators that the last two presidents both pushed the boundaries of executive orders. This president is likely to want to go further. Neither George W Bush nor Barack Obama issued an especially large number. They were both under 300: similar to Bill Clinton and a little lower than Ronald Reagan. FDR’s total of more than 3,000 remains a record, even if we adjust for three and a bit terms.

With commendable candor, Barack Obama came as close as any president has to conceding that his use of this tactic crossed a legal line. His order deferring action against illegal immigrants with minor children who are citizens came after years of failing to persuade Congress to adopt the policy as law. His justification of it was that Congress had failed to act. Congress’s failure to adopt a law which the President favors does not, of course, transfer the legislative power from Congress to the executive. He also unilaterally amended dates set in law for the phased introduction of the Affordable Care Act.

Of the latest flurry of executive orders one of the most politically controversial – though predictable – was the order to begin the process of building a border wall. This seems to be perfectly legal. The President has not appropriated new funds. He has set priorities for the use of funds already appropriated. This president’s priority is building a wall.

It is also probably legal for the President to set new priorities for vetting asylum and immigration applicants.

The president’s policy on “sanctuary cities”, however, probably breaches the Constitution. The whole idea of a sanctuary city seems absurd on its face. It would seem to be municipalities stepping into the federal preserve of immigration policy, but it is not. Sanctuary cities do not defend illegal immigrants from the federal government. They merely fail to cooperate with the federal government. If city cops detain someone they do not routinely ask questions about visa status and, if they discover the information, they do not pass it on to the federal authorities. Police secure wider cooperation in immigrant communities – including from victims and witnesses – as a result.

The federal government cannot commandeer state and local resources to administer federal law. If it wants extra resources to track down illegal immigrants it must ask Congress to appropriate them. It cannot make federal grants conditional on cooperation – as the administration is seeking to do – unless the law establishing those grants includes those conditions. The president can’t create new conditions for funds which have been voted by Congress

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Quentin Langley lives in New York and London and teaches at the University of Bedfordshire Business School. He is the author of Brandjack: How your reputation is at risk from brand pirates and what to do about it

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