National Review Online
Wednesday, January 22, 2025
So relentless has been the release of Donald Trump’s
first-week executive orders that, at times, it has been tough to keep pace with
the news. Once upon a time, presidencies were judged after a year. Later, this
became “One Hundred Days.” Now, it seems, our newly inaugurated executives
operate in hours. Whatever criticisms one might plausibly marshal against
Trump’s transition team, one cannot say it was unprepared.
There is nothing intrinsically virtuous or problematic
about executive orders, and, as such, one cannot judge them by their number.
One thousand innocuous edicts are better than a single unconstitutional decree.
Predictably, much has been made of the sheer scale of Trump’s Day One array,
but, as ever, the devil lies in the details. That being so, it is useful to
place Trump’s actions into three categories: (1) clearly legal; (2) probably legal
— but deserving of more attention; and (3) presumptively illegal. Buried within
the stack of papers that Trump has ostentatiously signed thus far lie solid
examples of each.
First, the good. We have long argued that it would be
constitutionally preferable for Congress to take a more active interest in the
details of legislation, but, until that happens — or until the Supreme Court
restricts the scope of delegation and forces Congress’s hand — presidents will
enjoy a great deal of power to fill in the blanks. A good deal of modern law is
punctuated by phrases such as “the Secretary shall” or “the agency shall
determine” or “in the judgment of the president,” and a host of President
Trump’s orders reflect that. Among the salutary changes that Trump has
legitimately made are the declaration of an emergency at the southern border;
the return of the “Remain in Mexico” policy; the reimagining of the federal
hiring process — including a freeze on the acquisition of new bureaucrats; the
destruction of federal DEI programs; the ending of government efforts to censor
or shape social media; the reversal of the electric vehicle mandate; the
rescinding of rules that outlawed incandescent light bulbs; the restoration of
military personnel whom Joe Biden fired for refusing the Covid-19 vaccine; the
withdrawal of the United States from the Paris climate accords; the
establishment of a policy “to recognize two sexes, male and female” and to ensure
that “Federal funds shall not be used to promote gender ideology”; the
promotion of classical architecture for buildings in Washington, D.C., and
beyond; and the elevation of the water needs of the people of California over
the desire to protect a small fish. These shifts are welcome, commonsensical,
and likely to be popular. In the long run, it would be a good idea for Congress
to make them permanent within federal law, but, absent that, Trump is within
his rights to channel the words of one of his predecessors and agree that
“elections have consequences.”
Next, there is the good-but-questionable. There is no
doubt that energetic action is necessary at the border. But it is as of yet
unclear whether the invocation of the 1798 Alien Enemies Act or the designation
of Mexican drug cartels as “terrorists” is legally wise or statutorily
defensible. “Enemy” is a term whose use has traditionally been limited to
wartime. “Terrorist” has a meaning within American law that is not identical to
“dangerous threat.” Certainly, the new executive ought to get much more serious
about enforcing immigration law than was its predecessor. But that does not
accord the president carte blanche. The same is true in the energy sector,
which has undoubtedly been hampered by bad policy, but which is not necessarily
in the state of “emergency” that President Trump has declared. In and of
itself, the use of that word is innocuous. As a precursor to actions that bend
or break the law, however, it requires scrutiny. Emergency powers exist to be
used in extreme circumstances, not to reflect differences of quotidian
political opinion. The challenge for the Trump administration will be to
remember that.
And, finally, there is the bad. On Monday, Trump
announced that he would decline to enforce Congress’s ban on TikTok for 75 days
while he looks for a buyer. By the plain terms of the ban — a ban that was
upheld 9–0 at the Supreme Court — he does not enjoy this authority. It is true
that Congress gave the executive branch the capacity to delay the
implementation of the legislation for up to 90 days. But that grant came with
strings — namely, that the delay be invoked only in such case as TikTok had a
buyer who was under contract. Despite having been available for 270 days,
TikTok is not under contract — or anything close to it. That being so, Donald
Trump is obliged to honor his oath of office and faithfully execute the law. By
declaring a pause that has no plausible basis in the statute, he has taken the
opposite course.
Worse still, Trump issued an order whose purpose was to
reinterpret the Constitution. For more than a century, it has been understood
that the 14th Amendment confers automatic citizenship upon any who is born in
the United States — except for the children of diplomats and members of Native
American tribes (the latter of whom have been granted birthright citizenship by
statute since the 1920s). Trump hopes to change this, by excluding not only
illegal immigrants from the system, but temporary-visa holders, too. As policy,
this is debatable, with the case for excluding illegal immigrants being
particularly strong. As law, however, it is almost certain to be stopped in the
courts. The Supreme Court ruled on this subject at the end of the 19th century,
and it has not weighed in since. Neither has Congress. If, as Trump claims,
there is some leeway in the meaning of the 14th Amendment, it is not
leeway that can be resolved by executive command.
It is simultaneously reassuring and alarming that, by
offering up this mixed bag of directives, Trump is in keeping with modern
practice. As with Joe Biden and Barack Obama before him — and, indeed, as in
his first term — Trump’s flurry of orders is the product of a legislative
branch that has been content to leave the spadework to the president, and to a
presidency that has begun to take cynical advantage of that trend. Ideally,
Inauguration Day would not herald a sea change in federal policy, and it would
not be left to the courts to put a stop to presidential proclamations that were
understood to be unauthorized at the time they were issued. For now, though,
that is the arrangement under which we live, and Trump’s early actions are a
symptom, not a cause, of that fact.
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