Trump Embraces Executive Orders to Avoid Congressional Gridlock
Donald Trump may be one of Barack Obama's toughest critics, but when it comes to the president's use of executive orders to circumvent Congress, the Republican sees him as a role model.
Trump has already promised to be as aggressive as Obama on executive orders on a wide range of issues. Early in his campaign, for instance, he vowed to use the power of the pen to give all cop killers the death penalty. More recently, in his response to the shooting death of 49 people inside an Orlando gay club this month, he pledged to use executive power to implement one of his signature proposals: A temporary ban on Muslim immigration (even though the shooter was born in New York).
“The immigration laws of the United States give the president powers to suspend entry into the country of any class of persons,” Trump said June 16, two days after the shooting. “I will use this power to protect the American people.”
John Yoo, a former Justice Department official in the George W. Bush administration who wrote the so-called “torture memos” that authorized waterboarding and other harsh interrogation techniques, said such a ban is “counter-productive” and “would not have stopped with either the San Bernardino or Orlando shootings.”
But Yoo suggested there would be a way for a Trump administration to get it through the courts.
“Immigrants who have not yet entered the U.S. have not acquired the full rights of the Bill of Rights, but I tend to think that our framers never wanted our government to discriminate on the basis of religious belief for any reason,” Yoo told Bloomberg Politics. “The government could easily focus on the real problem by more closely scrutinizing immigrants from certain countries, which the Constitution would clearly permit.”
In addition to the Muslim ban, here are other policies Trump has proposed that he could accomplish without help from Congress:
• End special tax treatment for carried interest: Trump—along with Hillary Clinton, his likely Democratic opponent—calls for taxing carried interest as regular income. A president's administration could accomplish that change by writing new regulations, said Eric Toder, co-director of the Urban-Brookings Tax Policy Center at the Urban Institute, a Washington think tank. But while Obama has repeatedly asked Congress to address carried interest, the Treasury Department under his administration has shied from the regulatory approach. “Treasury continues to explore its existing authority for ways to address the loophole,” a spokeswoman for the agency said.
The portion of investment-fund profits paid to managers of private-equity and other funds known as carried interest is treated as capital-gains income and taxed at a rate as low as 23.8 percent, well below the top individual rate of 39.6 percent.
Administration officials project that taxing carried interest as ordinary income would mean $19.3 billion in additional revenue over a decade. But in a Trump administration, the change might actually wind up costing the Treasury. His plan calls for a hefty rate cut on ordinary business income that would mean taxing carried interest at 15 percent, even lower than the 23.8 percent rate it's eligible for now.
• Tighten regulations on money-transfer companies: The cornerstone of Trump's candidacy has been a promise to build a wall along the U.S.-Mexico border. While Congress approves spending for construction projects, Trump says he can force Mexico to pay for it by taking control of an estimated $26 billion that is wired to Mexico from the U.S. every year.
Trump has said he would halt these remittances “on day one” by rewriting banking rules to expand the federal regulations on companies like Western Union and PayPal. He'd then add a new rule to block undocumented immigrants from wiring money outside the borders.
Trump’s administration would have the authority to write these rules, said Peter Wallison, former White House counsel in the Reagan administration. But Wallison and others—including Republicans and Democrats—questioned the practicality of implementing such a plan. “The notion that we’re going to track every Western Union bit of money that’s being sent to Mexico, you know, good luck with that,” Obama said after Trump unveiled his proposal in April.
• Cancel visas and increasing visa fees: Trump says he could increase his leverage on Mexico's leaders by making it harder for their people to live and work in the U.S. The country accounted for about 14 percent of the 10.9 million visas issues by the U.S. in 2015, according to State Department data. Only Chinese visitors, who received one of every four U.S. visas last year, took more. Trump’s administration would have broad discretion in choosing who to give visas, and how much to charge, said John Sandweg, a former acting director of U.S. Immigration and Customs Enforcement and general counsel of the Department of Homeland Security.
• Increase wages for certain foreign workers, and require companies to hire Americans first: Foreign workers hired for high-skilled jobs, like software engineering and research, must be paid a prevailing industry wage, as determined by a Labor Department database. Trump says requiring higher wages for those who receive H1-B visas will deter companies from hiring foreign workers. U.S. companies want more of these visas, not fewer, but it’s something President Trump could do with the rule-making process, Sandweg said. Similarly, Trump could change rules to try to force companies to search for new hires first from the country's pool of unemployed workers before turning to overseas labor.
• Mandatory deportation for all undocumented immigrants with criminal records, and detentions for those caught at the border: Like Obama and Bush before him, the Trump administration would set parameters on how to focus the deportation budget. Obama has focused resources on violent criminals, but Trump could undo that to go after those with traffic offenses. The changes would require 200,000 detention beds per day, Sandweg said. Congress has appropriated money for an average of 34,000 detention beds per day.
• Stop defending NATO allies: Trump used his foreign policy address on April 27 to echo concerns shared by many U.S. officials that most of the 28 nations in the North Atlantic Treaty Organization don’t spend at least 2 percent of their gross domestic product on defense, as required by the agreement. “The countries we are defending must pay for the cost of this defense—and, if not, the U.S. must be prepared to let these countries defend themselves,” Trump said. As commander-in-chief, Trump could take that unprecedented step, foreign policy experts said.
“He would risk blowing up the entire alliance over what could be an exchange rate or accounting issue,” said Michael O'Hanlon, a senior fellow in foreign policy at the Brookings Institution.
• Cancel the Paris climate accord and stop paying U.S. tax dollars into UN global warming programs: During a May 26 speech in North Dakota, Trump said he would yank U.S. support from the Paris agreement to slash carbon dioxide emissions that 195 nations endorsed last December. There isn't much Trump could do to kill the accord itself. The deal isn't a treaty, and it doesn't require Senate ratification. Instead, it goes into force automatically when at least 55 parties, accounting for 55 percent of global emissions, have ratified the pact. Still, under Trump, the U.S. could sit out future United Nations negotiations designed to deepen carbon cuts over time. And because individual country commitments are voluntary, Trump could easily walk away from the U.S. pledges at the cost of alienating other world leaders. The most vulnerable aspect of the accord is Obama's commitment to deliver $3 billion into a United Nations fund to help developing countries adapt to rising seas and other effects of a rapidly changing climate. The idea already faces stiff resistance from Republicans on Capitol Hill, so if Trump's State Department refused to cut checks to the UN fund, lawmakers aren't likely to fight him on it.
• Scrap “job-destroying” energy regulations: Trump singled out Obama's new limits on carbon dioxide emissions from power plants -- and the “waters of the U.S.” rule that defines what waterways are under the government's jurisdiction. He would also rescind “any regulation that is outdated, unnecessary, bad for workers or contrary to the national interest.” A Trump administration could relax enforcement of some rules, but courts wouldn't look kindly on dramatic regulatory reversals, said Bloomberg Intelligence analyst Rob Barnett. “It would be unprecedented to come in and take a final regulation and just wipe it out without a process,” Barnett said. “You may be able to start a new process that alters it, but that's very slow moving.”
• Approve the Keystone XL pipeline: Trump has repeatedly pledged to green light the proposed oil pipeline if developer TransCanada Corp. reapplies—with conditions attached. At a January rally, Trump said TransCanada would have to fork over a “big, big chunk of the profits” or even ownership rights. During a May 26 speech in North Dakota, he insisted Keystone profits should be shared with the U.S. “so the American people can get some more money out of it.” The first part of Trump's pipeline pledge is an easy lift. If TransCanada were to reapply, he could easily approve the project, perhaps truncating any new State Department reviews in the process. But adding a tariff or tax on the project likely would require approval by Congress -- and that kind of tariff completely breaks with Republican orthodoxy on trade and a longstanding regulatory approach to pipelines. “There's all sorts of problems with what he has proposed” on Keystone, said ClearView Energy Partners analyst Kevin Book in a phone interview. “Our oil pipelines are operated as common carriers. If you want to do something to revive the rail that Trump is apparently less fond of, all you have to do is destroy the economics of crude transport by pipe.”
• Reverse moratorium on coal leasing on federal lands: Trump has pledged to give coal producers some help on the supply side by swiftly reversing Obama's moratorium on coal leasing on federal lands and paring safety checks that he has cast as excessive. But supply isn't the real problem for coal producers, which are being pushed into bankruptcy by low demand, as power utilities switch to cheap, cleaner-burning natural gas. “The fate of coal has much greater concerns than whether the Bureau of Land Management quickly reopens the leasing process,” said Barnett of Bloomberg Intelligence. Trump's options for reviving the U.S. coal industry are limited because “it's not a question of regulation,” ClearView's Book. “You can't convince the public utility commissions who have already approved the shutdown of plants and the investors of utilities that have already moved on to the next rate-based investment that they should go back to something that's gone.” Trump acknowledged those market realities in North Dakota: “The market forces will be whatever they are. All I can do is free up the coal.”
• Declare China a currency manipulator: Trump says that China isn’t a fair trading partner, and that its “Great Wall of Protectionism” is hurting U.S. workers and companies. To even the playing field, Trump says his administration would declare the country a currency manipulator “on day one,” echoing a promise that 2012 Republican nominee Mitt Romney made during the campaign that year. Trump’s Treasury Department would make that declaration, but it’s unclear if it would have any impact. China was labeled a currency manipulator in the early 1990s, and while the county agreed to reform its foreign exchange system, trade deficits have continued to increase.
• Bolster the U.S. military presence in the East and South China Seas: Increasing troop levels here will help strengthen America’s ability to negotiate with the Chinese, Trump says. Obama’s administration sent about 300 additional troops with combat aircraft and helicopters into the area earlier this year in response to a border dispute between China and the Philippines. Trump has not said how many more troops he’d like in the region.
—With assistance from Jennifer Dlouhy and Lynnley Browning.
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