President Donald Trump has signaled that he won’t need the input of Congress to deliver on his campaign promises.
Who needs the legislative branch when you have a pen and a pad? Since taking office on Jan. 20, Trump has signed a series of executive orders and presidential memoranda that tackle everything from dismantling Obamacare to building a wall on the Mexican border to reviving the Keystone XL and Dakota Access pipelines. His executive order temporarily barring refugees and citizens of seven Muslim-majority countries has caused global discord. He also reshaped his National Security Council to include controversial White House chief strategist Steve Bannon, another decision that has fueled controversy.
Trump has taken a leaf out of former President Barack Obama‘s book in that he takes two different types of executive actions: signing executive orders and issuing presidential memoranda.
What’s the difference between an executive order and a presidential memorandum? It’s easy to confuse the two—both Trump and the media have on several occasions.
Trump’s decision to withdraw from the Trans-Pacific Partnership (TPP), reinstate the “Mexico City policy” banning U.S. government funding of certain overseas reproductive health services, and imposing a hiring freeze on the federal government was actually done through presidential memoranda, not an executive order—although the different between the two is arguably vague.
What is an executive order?
The U.S. Constitution does not define executive orders, presidential memoranda, or presidential proclamations, which is why their definitions are hard to pin down. According to the Congressional Research Service (CRS), executive orders are instructions from the president to public officials or U.S. government agencies and can have sweeping consequences. Presidential memoranda, on the other hand, are often more limited in scope.
Further, executive orders are numbered and must cite an existing law or section of the Constitution that gives the president authority over such an action. Executive orders must also be published in the Federal Registry. Memoranda have no such requirements.
However, as CRS notes, “The distinction between these instruments—executive orders, presidential memoranda, and proclamations—seems to be more a matter of form than of substance.”
Presidents often issue executive orders and memoranda as a last-resort method, such as to sidestep a gridlocked Congress or slow bureaucracy. But as CRS notes, any executive action that the president takes can be useless if it violates existing laws:
“The President’s authority to issue executive orders does not include a grant of power to implement policy decisions that are not otherwise authorized by law. Indeed, an executive order that implements a policy in direct contradiction to the law will be without legal effect unless the order can be justified as an exercise of the President’s exclusive and independent constitutional authority.”
Which executive actions have Trump issued? Let’s take a look:
Donald Trump’s Executive Orders
1) Directing Congress and the executive branch to prepare a repeal to the Affordable Care Act (Jan. 20)
Trump did not repeal the Affordable Care Act, better known as Obamacare, when he signed this executive order on Inauguration Day. The executive order declares that it’s the official policy of the Trump administration to repeal Obamacare, directs the federal government to prepare for the law’s eventual repeal by Congress, and directs the Department of Health and Human Services to delay actions that may financially burden the states or individuals. As the New York Times notes, “The Trump executive order should be seen more as a mission statement, and less as a monarchical edict that can instantly change the law.”
2) Expediting approvals for high-priority infrastructure projects (Jan. 24)
This executive order would expedite the environmental review and approval of high-priority infrastructure projects, such as highways, pipelines, airports, bridges, and updates to the electric grid. The order asks the chairman of the White House Council on Environmental Quality to create a list of high-priority infrastructure projects and create deadlines for their completion. It also pushes the federal government to expedite the environmental review process for such projects.
As McClathchy notes, the Trump administration has already created a “high-priority” list of 50 infrastructure projects of their own. The list includes a new terminal for the Kansas City airport, upgrades to Interstate 95 in North Carolina, and a proposal to replace the nation’s radar-based air traffic control system with one called NextGen.
3) Requiring states and the federal government to prioritize the enforcement of immigration laws (Jan. 25)
This executive order declares that sanctuary cities—cities that refuse to take legal action against undocumented immigrants—”willfully violate federal law in an attempt to shield aliens from removal from the United States.” It would reinstate the Secure Communities program, which would require state and local law enforcement to arrest undocumented aliens. It creates an “Office for Victims of Crimes Committed by Removable Aliens” within the Department of Justice to “provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and family members of such victims.
4) Build a wall on the U.S.–Mexico Border (Jan. 25)
This order directs the Department of Homeland Security to begin plans for building a wall on the southern border of the United States. It would hire 5,000 additional Border Patrol agents and end catch-and-release, a policy used by both the Bush and Obama administrations that ordered border agents to not detain many immigrants who crossed the border illegally.
5) Suspending U.S. refugee program and banning visas for seven Muslim-majority nations (Jan. 27)
The document’s signing officially suspends the issuance of new visas for citizens of the following nations for 90 days: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. During that period, the Department of State, Department of Homeland Security, and director of national intelligence will craft a list of countries that lack adequate vetting standards to ensure that those who come to the United States from those nations are not a threat. Those countries will then have 60 days to implement better screening standards or risk their inhabitants being barred from the U.S. indefinitely.
The executive order also suspends the Visa Interview Waiver Program, which allows certain people renewing their visas to skip an in-person interview.
Finally, the executive order postpones admitting Syrian refugees indefinitely and suspends the enitre U.S. refugee program for 120 days.
6) Ethics commitments of the Executive Branch (Jan. 28)
This order puts in place a lobbying ban on any Trump political appointee for five years after they leave office. The executive order also removes a requirement from the Obama administration ethics pledge that ethics waivers be publicly disclosed and published on. A paragraph-by-paragraph breakdown of the differences between the Obama and Trump ethics pledges is available here.
7) Reducing regulatory burdens (Jan. 30)
Under this order, any agency that proposes a new regulation must identify two established regulations to be repealed in its place. It also requires that the total cost of any new federal regulation must be zero unless granted an exemption by the Office of Management and Budget in writing.
8) Revamping Obama-era financial regulations (Feb. 3)
Trump’s executive order on the Dodd-Frank Wall Street Reform and Consumer Protection Act does not repeal Dodd-Frank by itself. Efforts to defund the Consumer Financial Protection Bureau or kill Obama-era consumer-minded SEC regulations on big banks must come from Congress. American Banker cast doubt on the executive order’s ability to scale back Dodd-Frank due to the fact that congressional Democrats oppose repealing the law and those running the financial regulatory agencies, such as SEC and CFPB, are Obama appointees.
Trump’s executive order would likely signal the end of the fiduciary rule, a regulation timed to go into effect in April. According to Forbes, the fiduciary rule holds investment advisers to a standard of acting in their clients’ best interests.
What Trump’s executive order does do is list the Trump administration’s policy and principles for regulating the financial industry, including empowering Americans to make independent decisions on their finances to build individual wealth and save toward their retirement, preventing bailouts, advancing U.S. interests in IMF meetings, “enabl[ing] American companies to be competitive with foreign firms,” and restoring “public accountability within Federal financial regulatory agencies.”
Trump’s executive order directs the Secretary Treasury to consult with other members of the Financial Stability Oversight Council (FSOC), a government council that was created in 2010 under Dodd-Frank to monitor risks to the U.S. financial systems. The Treasury Secretary is the chair of FSOC, and its members include the chairman of the Federal Reserve, the director of the Consumer Financial Protection Bureau, the chairpersons of the Security and Exchange Commission, the Commodities Future Trading Commission, the Comptroller of the Currency, and the Federal Deposit Insurance Corporation, among others.
The Treasury Secretary and heads of the member agencies of FSOC have 120 days to report to the president a list of existing regulations, laws, treaties, and agreements that are in conflict with the Trump administration’s policy and principles on the financial sector.
Donald Trump’s Presidential Memoranda
1) Regulatory freeze (Jan. 20)
This memo prevents the federal government from issuing any new regulations until it is reviewed by the Trump administration. Written by White House Chief of Staff Reince Priebus, the memo delays all regulations with the exception of those pertaining to health, safety, financial, or national security matters.
2) Mexico City Policy (Jan. 23)
This memo reinstates the “Mexico City Policy,” which blocks the use of U.S. government funds for overseas non-governmental organizations that perform or promote abortions and certain other types of reproductive health services. The Mexico City policy has also had negative impacts on HIV/AIDS programs abroad. It was established by former President Ronald Reagan and has been rescinded by Democratic presidents and reinstated by Republican presidents ever since.
3) Hiring Freeze (Jan. 23)
The federal government is barred from hiring any new employees as of Jan. 22. This does not apply to military personnel. The head of any agency may also exempt positions that include national security or public safety responsibilities.
4 & 5) Advance Dakota Access and Keystone XL Pipeline (Jan. 24)
Trump signed a pair of memos that would approve and expedite the construction of the Dakota Access and Keystone XL Pipelines. One memo expedites review and approval of the remaining DAPL pipeline by the Army for Civil Works and U.S. Army Corps of Engineers. The memo on Keystone XL invites TransCanada, the Canadian energy company behind the pipeline, to re-submit its application for a presidential permit to construct the pipeline.
6) Requiring pipelines to be made out of U.S. steel (Jan. 24)
This memo requires the secretary of commerce to ensure all pipelines are made with U.S.-made materials, to the maximum extent possible.
7) Reducing regulatory burdens for domestic manufacturing (Jan. 24)
The secretary of commerce is instructed to contact stakeholders to review the impact of federal regulations on domestic manufacturing. After the review, the secretary of commerce is instructed to create a streamlined permitting process for domestic manufacturers.
As part of this process, the secretary of commerce shall coordinate with the secretaries of Agriculture and Energy, the administrator of the Environmental Protection Agency, the director of the Office of Management and Budget, the administrator of the Small Business Administration, and such other agency heads as may be appropriate
8) Rebuilding the U.S. armed forces (Jan. 27)
The memo requires Defense Secretary James Mattis to create a new “Nuclear Posture Review” to ensure that the U.S. nuclear arsenal is “modern, robust, flexible, resilient, ready, and appropriately tailored to deter 21st-century threats and reassure our allies.”
It also requires Mattis to create a new “Ballistic Missile Defense Review,” which would “identify ways of strengthening missile-defense capabilities, rebalancing homeland and theater defense priorities, and highlighting priority funding areas.” Mattis must also review the military’s readiness within 30 days and develop a budget for the 2018 fiscal year.
9) Plan to Defeat ISIS (Jan. 28)
Trump’s national security memorandum on ISIS and Syria directs Defense Secretary Jim Mattis to create a plan to defeat the so-called Islamic State and submit it to the president within 30 days.
10) Organization of the National Security Council and the Homeland Security Council (Jan. 28)
Trump’s memo establishes the regular members of his National Security Council and Homeland Security Council. The president’s chief strategist, Steve Bannon, is invited to attend all regular NSC meetings of the Principal’s Committee (which include members of the president’s cabinet).
As Lawfare notes, this rarely ever happens:
“This is unusual; the NSC function usually does not include participants from the political side of the White House. In the Bush Administration, Karl Rove would not attend NSC meetings. According to former Chief of Staff Josh Bolten, President Bush did not want to appear, especially to the military, to insert domestic politics into national security decisionmaking. “
11) Revamp Obama-era financial regulations (Feb.2)
Trump’s executive order on Dodd-Frank does not repeal the financial-regulation law itself. Efforts to defund the Consumer Financial Protection Bureau or kill Obama-era consumer-minded SEC regulations on big banks must come from Congress.
American Banker cast doubt on the executive order’s ability to scale back Dodd-Frank due to the fact that congressional Democrats oppose repealing the law and those running the financial regulatory agencies, such as SEC and CFPB, are Obama appointees. Trump’s executive order would, however, likely signal the end of the fiduciary rule, a regulation timed to go into effect in April. According to Forbes, the fiduciary rule holds investment advisers to a standard of acting in their clients’ best interests.
What Trump’s executive order does do is list the Trump administration’s policy and principles for regulating the financial industry: empower Americans to make independent decisions on their finances to build individual wealth and save on their retirement, prevent bailouts, advance U.S. interests in IMF meetings, enable American companies to be competitive with foreign firms, and restore public accountability in the federal financial
Trump’s executive order directs the Secretary Treasury to consult with other members of the Financial Stability Oversight Council, a government council that was created in 2010 under Dodd-Frank to monitor risks to the U.S. financial systems. The Treasury secretary is the chair of FSOC, and its members include the chairman of the Federal Reserve, the director of the Consumer Financial Protection Bureau, the chairpersons of the Security and Exchange Commission, the Commodities Future Trading Commission, and the comptroller of the Currency and the Federal Deposit Insurance Corporation, among others.
The Treasury Secretary and heads of the member agencies of FSOC have 120 days to report to the president a list of existing regulations, laws, treaties, and agreements that are in conflict of the Trump administration’s policy and principles on the financial sector.
12) Task Force on Crime Reduction and Public Safety (Feb.9)
This executive order establishes that it is the policy of the executive branch to “reduce crime in America.” It emphasizes creating policies to address illegal immigration, drug trafficking, and violent crimes. The executive order directs Attorney General Jeff Sessions to create a task force of individuals who would develop strategies to achieve these goals.
The task force would identify deficiencies in existing laws and propose new legislation to improve public safety and reduce crime. It would evaluate existing crime data, identify measures that would improve data collection and the understanding of crime trends and crime reduction.
The task force would meet as often as the attorney general wishes. It is required to make at least one report to the President of the United States by February 9, 2018 and at least one report each year after.
13) Preventing violence against police officers (Feb. 9)
The executive order on police violence could introduce new mandatory minimum sentences for those who attack law enforcement officers. Police unions are in support of this. “I can promise that if we have a president who is speaking about protecting the lives of police officers, that the membership is going to be supportive of him,” Chuck Canterbury, the president of the Fraternal Order of Police, told the New York Times. “No police officer took an oath that said, ‘I agree to support and defend the Constitution and to get my butt whipped.’”
The order calls for the executive branch to enforce all federal laws in order to protect the safety of officers every level of law enforcement—from FBI agents to local police officers. The executive order asks the Justice Department to develop strategies to further enhance the protection of federal, state, tribal, and local law enforcement officers.
The executive branch plans to pursue legislation that will define new federal crimes and increase penalties for existing federal crimes in order to prevent violence against law enforcement officers.
It also calls for the DOJ to thoroughly evaluate existing grant programs to federal, state, tribal, and local law enforcement officers.The DOJ currently provides grants to help law enforcement agencies with community-policing, activities under Violence Against Women Act, drug crimes, and more.
14) Preventing international trafficking and transnational criminal organizations (Feb.9)
The executive order calls for stronger enforcement of federal laws to crack down on transnational criminal organizations, including criminal gangs, cartels and racketeering organizations. This includes federal laws on the illegal trafficking of humans, drugs, wildlife, weapons, as well as corruption, cybercrime, fraud, financial crimes, and intellectual-property theft.
The executive order calls for the secretary of state, director of national intelligence, attorney general, and secretary of Homeland Security to direct the existing interagency Threat Mitigation Working Group, which was created by President Barack Obama in 2011. The working group would examine existing immigration laws to see what statutes could be better enforced or amended to prevent members of transnational criminal groups from entering the United States or exploiting the United States immigration system. The working group must issue at least one report per quarter of convictions related to transnational crimes and subsidiaries.
15) New line of succession within the Department of Justice (Feb. 9)
The executive order changes the line of succession with the Department of Justice, or who would act in the event that the attorney general, deputy attorney general, or associate attorney general dies, resigns, or is otherwise unable to perform their duties. Obama signed an executive order on on Jan. 13 that would make the U.S. attorney for the District of Columbia next in line. Trump’s executive order makes the U.S. attorney for the Eastern District of Virginia, currently Dana J. Boente, next in line in the order of succession. Boente was appointed by the Trump administration in January to take over for acting Assistant Attorney General Sally Yates after she was fired due to not complying with White House orders.
