Category Archives: Executive Branch

Benchmarking the first 100 days of Donald Trump’s presidency

It’s day 98 in the Trump presidency, meaning the countdown to 100 days is almost over. The Trump administration issued multiple fact sheets earlier this week to support its claim that “[a]t an historic pace, this President has enacted more legislation and signed more executive orders than any other president in over a half century.” Quoting from President Trump’s 100 Days of Historic Accomplishments. Due note that the White House is not comparing its accomplishments with FDR’s first 100 days back in 1933.

In his NYT op-ed piece, Donald Trump’s First 100 Days: The Worst on Record, David Leonhardt recently wrote:

Here’s my reading of Trump’s start: It’s the least successful first 100 days since the concept existed. … Even if you forget about the content of his actions — whether they strengthened or weakened the country — and focus only on how much he accomplished, it’s a poor beginning. His supporters deserve to be disappointed, and his opponents should be cheered by how unsuccessful his agenda has been so far.

So which is it, 100 days of historic accomplishments or the least successful 100 days since FDR? To determine for oneself, one might want to check one or more “Trump trackers.” Both the Washington Post’s tracker and this one use Donald Trump’s Contract with the American Voter to identify and then monitor Trump’s individual promises for his first 100 days.  — Joe

Perhaps not as easy as first thought: Court blocks part of Trump’s sanctuary cities executive order

A federal judge on Tuesday blocked enforcement of part of President Donald Trump’s executive order to deny federal funding to sanctuary cities that refuse to help the government detain and deport immigrants. The court issued a nationwide injunction to block enforcement of Section 9(a) of E.O. 13768, Enhancing Public Safety in the Interior of the United States, 82 Fed. Reg. 8799 (Jan. 30, 2017), the provision that would allow the federal government to withhold funding from sanctuary jurisdictions. Text of Decision. For an analysis, see Steven D. Schwinn’s Constitutional Law Prof Blog post.

Prior to the court ruling, the administration’s latest effort to clamp down on sanctuary jurisdictions came on April 21st when the DOJ sent letters to nine jurisdictions demanding proof of compliance with 8 USC 1373. According to the DOJ press release:

The letters remind the recipient jurisdictions that, as a condition for receiving certain financial year 2016 funding from the Department of Justice, each of these jurisdictions agreed to provide documentation and an opinion from legal counsel validating that they are in compliance with Section 1373. The Department of Justice expects each of these jurisdictions to comply with this grant condition and to submit all documentation to the Office of Justice Programs by June 30, 2017, the deadline imposed by the grant agreement.

The piecemeal implementation of Trump’s executive order, should it ever be enforceable, is the topic of Sanctuary Jurisdictions and Select Federal Grant Funding Issues: In Brief (March 16, 2017, R44789). This report discusses questions that might be raised regarding the implementation of Trump’s EO 13768 by federal grant-making agencies on the impact of federal grant funding for designated sanctuary jurisdictions. The CRS report observes

Because of the complexity of implementing a centralized policy such as the EO through the decentralized structure of federal grants administration practices, there is uncertainty in determining the impact of the EO on federal grant funding for sanctuary jurisdictions. The impact could be affected by the discretion exercised by the Attorney General and the Secretary [of Homeland Security] in defining a “federal grant,” determining which programs are exempted because of providing necessary funding for law enforcement purposes, and determining what constitutes a “sanctuary jurisdiction.” The impact of the EO on federal grant funding could also be affected by how federal grant awarding agencies utilize discretion in administering the grant programs, including review of eligibility and conditioning federal grant awards.

End Note. See also this CRS report, Executive Orders: Issuance, Modification, and Revocation (April 16, 2014, RS20846) which discusses executive orders with a focus on the scope of presidential authority to execute such instruments, as well as judicial and congressional responses to their issuance, and  this LLB post for links to additional CRS reports on sanctuary jurisdictions. For additional background, see Darla Cameron’s How sanctuary cities work, and how Trump’s executive order might affect them (Washington Post, Jan. 25, 2017). — Joe

Impeachment talk: idle or serious threat?

Time’s Katie Reilly offers a backgrounder on impeachment in the context of the Trump presidency in How Difficult Would It Be to Impeach President Trump? In the article, Reilly observes “Bush and Obama both faced idle impeachment threats that never amounted to anything. People who now believe there’s a serious case for impeaching Trump will have to overcome the reputation established by those who raise the specter of impeachment merely to demonstrate political opposition.” — Joe

Brookings Institution paper on the Emoluments Clause

Two snips from The Emoluments Clause: Its Text, Meaning and Application by Norman L. Eisen, Richard Painter and Laurence H. Tribe:

Never in American history has a president-elect presented more conflict of interest questions and foreign entanglements than Donald Trump. Given the vast and global scope of Trump’s business interests, many of which remain shrouded in secrecy, we cannot predict the full gamut of legal and constitutional challenges that lie ahead. But one violation, of constitutional magnitude, will run from the instant that Mr. Trump swears he will “faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”1 While holding office, Mr. Trump will receive—by virtue of his continued interest in the Trump Organization and his stake in hundreds of other entities—a steady stream of monetary and other benefits from foreign powers and their agents.

Applied to Mr. Trump’s diverse dealings, the text and purpose of the Emoluments Clause speak as one: this cannot be allowed.

The bottom line is simple: Mr. Trump stands to benefit personally, in innumerable and largely hidden ways, from decisions made every day by foreign governments and their agents. Especially given Mr. Trump’s strong personal attachment to his business, it is easy to imagine situations in which he is affected—whether subtly or overtly—by perceptions of whether foreign nations have dealt fairly with the company that he built and still owns. In those circumstances, feelings of gratitude, affection, frustration, and anger inevitably bleed out in complex and hard-to-discern ways, muddling motives in respects that elude conscious awareness or public accountability. Foreign states, attuned to that basic truth of human psychology, will no doubt tread carefully around Mr. Trump’s private interests—seeking to avoid his wrath and induce his favor. The Emoluments Clause was put in place to avoid precisely that blending of public and private interest.

Recommended. — Joe

Dealmaking and the administrative state in the Trump era

From the abstract for The Dealmaking State: Executive Power in the Trump Administration by Steven Davidoff Solomon (Berkeley) and David T. Zaring (Penn):

The Trump administration has promised to pursue policy through deals with the private sector, not as an extraordinary response to extraordinary events, but as part and parcel of the ordinary work of government. Jobs would be onshored through a series of deals with employers. Infrastructure would be built through joint ventures where the government would fund but private parties would own and operate public assets.

We evaluate how this dealmaking state would work as a matter of law. Deals were the principal government response to the financial crisis, partly because they offered a just barely legal way around constitutional and administrative barriers to executive action. Moreover, unilateral presidential dealmaking epitomizes the presidentialism celebrated by Justice Elena Kagan, among others. But because it risks dispensing with process, and empowers the executive, we identify ways that it can be controlled through principles of transparency, rules of statutory interpretation, and policymaking best practices such as delay and equivalent treatment of similarly situated private parties.

— Joe

CRS report on the Hatch Act

The Hatch Act applies to all federal officers and employees—other than the President and Vice President—in the agencies, departments, bureaus, and offices of the executive branch of the federal government. It is beginning to be referenced by some pundits in the context of the culprits involved in Trump-Russia connection.

This CRS report, Hatch Act Restrictions on Federal Employees’ Political Activities in the Digital Age (April 13, 2016 R44469), “examines the history of regulation of federal employees’ partisan political activity under the Hatch Act and related federal regulations. It discusses the scope of the application of these restrictions to different categories of employees and provides a background analysis of the general restrictions currently in place. Finally, it analyzes potential issues that have arisen and interpretations that have been offered related to the application of these restrictions to new platforms of activity, for example, email, social media, and telework.’ — Joe

National Archive reminds White House to save all Trump tweets

To comply with the Presidential Records Act, the Trump administration has agreed to archive all of Trump’s tweets including the ones he deletes or corrects. No word on how precisely the White House will do that. See Stephen Braun’s National Archives to White House: Save all Trump tweets for more. Therein Braun also reports that apparently some senior administration staff are using their private RNC email accounts. — Joe

Trump administration sued over its decision to delay implementation of energy efficiency rules for appliances

Leading a coalition of 10 states and municipalities, New York Attorney General Eric Schneiderman petitioned the Second Circuit to review Trump’s order. The petitioners claim the Trump administration violated the federal Energy Policy and Conservation Act’s “anti-backsliding” provisions and the Administrative Procedures Act. The petition asks the appeals court to require the standards to take effect immediately.

Joining in the petition are California, Connecticut, Illinois, Maine, Massachusetts, Oregon, Vermont and Washington state – along with Pennsylvania’s Department of Environment Protection and New York City. In a letter yesterday, the coalition warned the Department of Energy to publish the new standards within 60 days or face a federal lawsuit. — Joe

City of Seattle sues Trump administration over threats against sanctuary cities

On Monday, AG Sessions announced new measures that would claw back Justice Department funds from sanctuary cities that take a more lenient approach to enforcing federal immigration laws. On Tuesday, The Trump administration’s threat to defund sanctuary cities dominated the House Judiciary Committee’s hearing. On Wednesday, the City of Seattle sued the Trump administration over his administration’s threats against sanctuaries cities in the Western District of Washington.

The lawsuit makes two main arguments about Trump’s Executive Order according to Dean Kevin R. Johnson’s (UC-Davis) Immigration Law Prof Blog post:

  1. The order is unconstitutional and ambiguous, and creates uncertainty around Seattle’s budget by threatening federal funding. It violates the 10th amendment by attempting to force local entities to enforce federal immigration law, and violates the Spending Clause by attempting to coerce local action through the denial of federal funds.
  2. The City of Seattle and our welcoming city policies do not violate federal law. The Executive Order calls for localities to cooperate with the federal government and share information. City employees are directed to cooperate with, not hinder, federal actions; however, City employees are prohibited from inquiring into immigration status. The City doesn’t prohibit information sharing, but instead limits the collection of information.

For recent CRS reports on sanctuary cities, see this LLB post. — Joe