New York Times
By Matt Apuzzo
January 25, 2017
WASHINGTON — With Twitter posts, leaks and executive orders, President Trump is moving quickly to show he will make good on some of his key campaign pledges. Within a 24-hour period this week, he ordered or signaled significant new policies on border security, terrorism, crime and voting.
But as Mr. Trump’s predecessor learned in 2009 when he ordered the military prison at Guantánamo Bay closed, implementing policy is not as easy as the stroke of a pen.
Details to carry out security policies exceed Twitter’s 140-character limit and in some cases the public can only infer Mr. Trump’s plans. Here is what he has promised, and what authority he has to carry it out.
Funds for a border wall
No political promise came to symbolize Mr. Trump’s candidacy like his pledge to build a wall between the United States and Mexico. The costs and logistical headaches of such a project — which would cut through private property — have always been daunting, but Mr. Trump’s supporters were unfazed: “Build the wall!” they chanted.
On Wednesday, Mr. Trump signed an order to build it and announced that work would begin immediately on a project that is estimated to cost more than $20 billion.
He offered few details, including any that would address the fact that Congress, not the White House, writes the checks. The Antideficiency Act prohibits the government from spending money for any reason that Congress has not appropriated.
The president can announce whatever plans he wants. But whether the plan is “build a wall” or “close Guantánamo,” if Congress does not go along, it can amount to wishful thinking. As one Republican lawmaker said of Mr. Obama’s 2009 order on Guantánamo, “This is an executive order that places hope ahead of reality.”
Mr. Trump, a real estate developer by trade, seemed undeterred. “We do not need new laws,” he said Wednesday. “We will work within the existing system and framework.”
While that appeared to mean that he intended to shift some already appropriated money to the wall’s construction, it was unclear where the funds would come from. He cannot easily cannibalize one program to pay for the wall.
“It doesn’t work out like that,” said William C. Banks, a Syracuse University law professor.
So is Mr. Trump’s executive order meaningless? Not entirely. The Department of Homeland Security can start planning and discussing the project now and ask for the bulk of the money later. And if Mr. Trump really wants to break ground immediately and avoid Congress, there is — as always in Washington — a workaround that would let him do so at least in theory.
Two laws, the Economy Act of 1932 and the Feed and Forage Act, give the president some spending wiggle room. The Economy Act allows presidents to move money between departments in some circumstances.
The Feed and Forage Act, first enacted in 1799, was intended to allow military leaders in the field to spend money on essential clothing and medical supplies. But presidents have used that power broadly. Former President George H. W. Bush started the first gulf war under that authority, Mr. Banks said.
In theory, Mr. Trump could order the military to spend extra money to protect national security, then move around the funding within the bureaucracy to pay for a wall built by the Department of Homeland Security, Mr. Banks said. But such an accounting trick has never been used to go around Congress on such a large scale, Mr. Banks said. Lawsuits would be inevitable. It would be much easier to simply ask Congress for the money.
But for now, Mr. Trump gets to say he is making good on a political promise. And if Congress scuttles the plan later or lawsuits hold it up? “He can say he did his part,” Mr. Banks said. He compared the move to the playbook of former President Barack Obama: “It is very Obama.”
Reopening C.I.A. prisons
Mr. Trump is preparing an executive order that would clear the way for the Central Intelligence Agency to reopen overseas “black site” prisons.
According to a draft of the order, Mr. Trump also intends to review the agency’s now-defunct interrogation program, in which interrogators tortured some suspected terrorists through waterboarding and extensive sleep deprivation. Other suspects were shackled in painful positions, doused with water and menaced with dogs.
Mr. Trump can revoke the current ban on C.I.A. prisons, but it would take much more than his signature to restore the interrogation program. Federal law now restricts interrogation techniques to those authorized by the Army Field Manual.
And unlike when the tactics were first authorized — when government lawyers said no long-term harm would come from the tactics — it is now clear that many prisoners suffered persistent psychological damage. That would make the program even more difficult to justify under anti-torture laws.
Mr. Trump could try to ignore all this, saying he has the authority to do so as commander in chief. But his cabinet nominees seemed to reject that theory in their confirmation testimony. As a practical matter, reopening the secret prisons would require finding countries willing to host them. Those who did so for former President George W. Bush have faced a decade of investigations, lawsuits and recriminations.
‘Send in the Feds!’
Mr. Trump threatened federal intervention in Chicago if the city does not address violent crime. Chicago saw at least 762 homicides in 2016, the highest figure in two decades — more than Los Angeles and New York combined.
It was not clear what Mr. Trump meant by “feds.” But Mr. Trump has wide latitude in this area. The Justice Department could dispatch more agents from the Federal Bureau of Investigation and the Drug Enforcement Administration to Chicago.
In more extreme situations, presidents and governors have activated the National Guard, but usually to keep the peace during riots and unrest.
Investigating voter fraud
In a series of Twitter posts, Mr. Trump reiterated his false assertion that Hillary Clinton won the popular vote by 2.8 million ballots only because undocumented immigrants and others voted illegally. There is no evidence of such widespread fraud (as Mr. Trump’s campaign lawyers have acknowledged), and Mr. Trump offered none. Nor did he say what sort of investigation he had planned.
Voter fraud is a crime, so Mr. Trump may have been referring to an F.B.I. investigation. But the president does not have the authority to direct F.B.I. criminal investigations. Those require a criminal predicate, or reasonable suspicion. Generally, though, Mr. Trump has the authority to order a fact-finding investigation — call it a commission, task force or working group. That would allow the White House to make its findings public.
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