Getting Right to Work

I was intending to keep a little history here, recording President Trump’s actions on day one in office as the 47^th President of the United States. I went to the White House site for the official record, although it may be the count is off, because some items do several things at once, such as appointing cabinet and other staff, and granting clemency to multiple individuals. (Order is newest to oldest, or start at the beginning here.) 

President Donald J. Trump on Day 1, January 20, 2025
Image credit Doug Mills/New York Times

I’ll note here that there is a specific purpose for an executive order: to carry out the law. It is not an extra-constitutional privilege of the president to make law by circumventing the legislative branch. Previous administrations’ practices notwithstanding, executive orders are to direct how his administration will carry out existing laws. 

I read that there were, on day one, 26 executive orders, 12 memoranda, 4 proclamations, plus 75 Biden executive orders that were withdrawn (which aren’t included in the list). Another list had 40 items—plus the link to the official Presidential Actions website.

Today (January 24) there is one, I call it a proclamation, but the item itself doesn’t say what it is. It’s a sort of summary of the executive actions of the First 100 Hours. In it they (the White House) say:

Within the first 100 hours of his second administration, President Trump [has] taken hundreds of executive actions to secure the border, deport criminal illegal immigrants, unleash American prosperity, lower costs, increase government transparency, and reinstitute merit-based hiring in the federal government.

“Hundreds” is more than my list through the week. So they must be counting the multiple items within many of these. Or there are things he's doing, or announcing, that are not on the official list. This is to say, I don't really know how many there are. He's been very busy.

I thought I’d just list them items, and then comment on a few. And that is what I’m about to do. But I ended up also listing the additional executive orders, memoranda, and proclamations through Friday, January 24, because important things keep happening. That may continue to be true, possibly even on the weekend, and certainly next week. It’s leaving us breathless.

Here’s the list. And then we’ll talk.

January 20, 2025

1.        President Trump Announces Cabinet andCabinet-Level Appointments   (staffing)

o   Scott Bessent, of South Carolina, to be Secretary of the Treasury.

o   Pamela Bondi, of Florida, to be Attorney General.

o   Douglas Burgum, of North Dakota, to be Secretary of the Interior.

o   Lori Chavez-DeRemer, of Oregon, to be Secretary of Labor.

o   Douglas Collins, of Georgia, to be Secretary of Veterans Affairs.

o   Sean Duffy, of Wisconsin, to be Secretary of Transportation.

o   Peter Hegseth, of Tennessee, to be Secretary of Defense.

o   Robert F. Kennedy, Jr., of California, to be Secretary of Health and Human Services.

o   Howard Lutnick, of New York, to be Secretary of Commerce.

2.        President Trump Announces Sub-Cabinet Appointments  (staffing)

3.        President Trump Announces Acting Cabinet and Cabinet-Level Positions  (staffing)

4.        President Trump Designates Chairmen and Acting Chairmen  (staffing)

5.        Flying the Flag of the United States at Full-Staff on Inauguration Day  Proclamation

6.        Initial Rescissions of Harmful Executive Orders and Actions   Executive Order

7.        Restoring Freedom of Speech and Ending Federal Censorship   Executive Order

8.        Ending the Weaponization of the Federal Government  Executive Order

9.        Return to In-Person Work  Memorandum

10.   Regulatory Freeze Pending Review  Memorandum

11.   Hiring Freeze  Memorandum

12.   Delivering Emergency Price Relief for American Families and Defeating the Cost-of-Living Crisis  Memorandum

13.   Putting America First in International Environmental Agreements  Executive Order 

14.   Granting Pardons and Commutation of Sentences for Certain Offenses Relating to the Events at or Near the United States Capitol on January 6, 2021  Proclamation 

15.   Holding Former Government Officials Accountable for Election Interference and Improper Disclosure of Sensitive Governmental Information  Executive Order 

16.   Declaring a National Emergency at the Southern Border of the United States  Proclamation 

17.   Memorandum to Resolve the Backlog of Security Clearances for Executive Office of the President Personnel  Memorandum 

18.   America First Trade Policy  Memorandum 

19.   Clarifying the Military’s Role in Protecting the Territorial Integrity of the United States  Executive Order 

20.   Unleashing American Energy  Executive Order 

21.   Realigning the United States Refugee Admissions Program  Executive Order    

22.   Protecting the Meaning and Value of American Citizenship  Executive Order 

23.   Securing Our Borders  Executive Order 

24.   Putting People over Fish: Stopping Radical Environmentalism to Provide Water to Southern California  Memorandum 

25.   Restoring the Death Penalty and Protecting Public Safety  Executive Order 

26.   Promoting Beautiful Federal Civic Architecture  Memorandum 

27.   Restoring Accountability for Career Senior Executives  Memorandum 

28.   Declaring a National Energy Emergency  Executive Order 

29.   Temporary Withdrawal of All Areas on the Outer Continental Shelf from Offshore Wind Leasing and Review of the Federal Government’s Leasing and Permitting Practices for Wind Projects  Memorandum 

30.   Reevaluating and Realigning United States Foreign Aid  Executive Order 

31.   Organization of the National Security Council and Subcommittees  Memorandum 

32.   The Organization for Economic Co-operation and Development (OECD) Global Tax Deal(Global Tax Deal)  Memorandum  

33.   Protecting the American People Against Invasion  Executive Order 

34.   Unleashing Alaska’s Extraordinary Resource Potential  Executive Order 

35.   Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats  Executive Order 

36.   America First Policy Directive to the Secretary of State  Executive Order 

37.   Establishing and Implementing the President’s “Department of Government Efficiency”  Executive Order 

38.   Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government  Executive Order  

39.    Ending Radical and Wasteful Government DEI Programs and Preferencing   Executive Order 

40.   Reforming the Federal Hiring Process and Restoring Merit to Government Service  Executive Order 

41.   Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists  Executive Order 

42.   Restoring Names That Honor American Greatness  Executive Order 

43.   Guaranteeing the States Protection Against Invasion  Proclamation 

 

January 21, 2025

44.   Keeping Americans Safe in Aviation  Executive Order 

45.   Ending Illegal Discrimination and Restoring Merit-Based Opportunity  Executive Order 

 

January 22, 2025

46.   Nominations Transmitted to the Senate  (staffing) 

47.   Executive Grant of Clemency for Andrew Zabavsky  Proclamation  

48.   Designation of Ansar Allah as a Foreign Terrorist Organization  Executive Order 

49.   Executive Grant of Clemency for Terence Sutton  Proclamation  

 

January 23, 2025

50.   Federal Recognition of the Lumbee Tribe of North Carolina  Memorandum 

51.   Strengthening American Leadership in Digital Financial Technology  Executive Order 

52.   Declassification of Records Concerning the Assassinations of President John F. Kennedy, Senator Robert F. Kennedy, and the Reverend Dr. Martin Luther King, Jr.  Executive Order 

53.   President’s Council of Advisors on Science and Technology  Executive Order 

54.   Removing Barriers to American Leadership in Artificial Intelligence  Executive Order 

 

January 24, 2025

55.   The First 100 Hours: Historic Action to Kick Off America’s Golden Age  Proclamation 

56.   Enforcing the Hyde Amendment  Executive Order 

57.   Memorandum for the Secretary of State, the Secretary of Defense, the Secretary of Health and Human Services, the Administrator of the United States Agency for International Development  Memorandum 

 

Whew!

Some of the most notable are the promises kept to secure the southern border and to pardon and release the J6 political prisoners. There was hesitation on a very few J6 cases, because of actual violence, but they got their sentences commuted—that is, they were not exonerated like the 1500 or so others, but their time served is all that is required of their sentences, which were ridiculously harsh compared to criminals convicted of even worse violence but not related to J6.

He took on some woke issues right away. Another first day action was to declare that the federal government will only recognize two sexes: male and female. And no more DEI; the federal government is now merit-based—getting rid of illegal discrimination.

As exciting as Day 1 was, releasing all the classified documents related to the assassinations of JFK, RFK, and MLK was noteworthy. I’m looking forward to getting some verifiable truth related to those—even if it reveals deep corruption within some three-letter agencies, which is I think what most of us expect to see. This is part of draining the swamp and clearing out the corruption; you have to see what slime you have to shovel out, so you don’t cover over a rotting foundation.

The exciting news added today was in the last executive order plus the last memorandum of the day. Enforcing the Hyde Amendment means preventing federal taxpayer dollars from going toward abortions or abortion services or providers. This had been in effect since 1980 (after 300,000 abortions had already been paid for with federal funds).

The original Hyde Amendment allowed for funding only in cases where abortion was necessary to save the life of the mother. In 1993, the exceptions of abortions where the pregnancy had resulted from rape or incest were added (note that incest implies coercion, or technically rape, even though it wasn’t a one-time crime or was not repeatedly resisted by the victim). While Democrats such as Hillary Clinton ran saying they would get rid of the Hyde Amendment, no one had ever attempted it until Joe Biden in 2022. His first attempt was to eliminate the Hyde Amendment from an omnibus spending bill, but it was placed back in. So he did it by executive order. Trump’s executive order includes revoking two Biden executive orders from 2022:

·        Executive Order 14076 of July 8, 2022 - Protecting Access to Reproductive Healthcare Services 

·        Executive Order 14079 of August 3, 2022 - Securing Access to Reproductive and Other Healthcare Services [The link included in this week’s executive order did not have the right link for this, but I found it by the number.]     

It looks to me, from a quick read through the Biden executive orders, that he would simply not abide by the Hyde Amendment’s requirement not to fund abortions, because he supported abortion as a “women’s health care right.” This was in opposition to the Supreme Court ruling in the Dobbs decision in June 2022. So, thank you, President Trump, for taking care of this detail and removing our condemnation.

The memorandum that followed up was to prevent abortion funding to other nations, often through NGOs and non-profits and charities.

Vice President JD Vance, marching for life,
image from DC_Draino on Instagram

Another first day action was to declare an energy emergency. That might be a bit of a hyperbole. During the Biden administration, gas prices got pretty high, but they went down this past year, I’m assuming in anticipation of the election. The real concern has been preventing use of existing oil reserves, such as in Alaska, prioritizing some climate change faux science over actual energy needs. And there was the draining of the strategic oil reserves that Biden was pretty cavalier about. Add to that an expected increase in energy use with electric vehicles and with increased use of AI. So, maybe we weren’t exactly in a crisis, but we needed urgent changes. And those of us living here in Houston, up the road from the energy corridor of the energy capital, appreciate it.

Another big one was ending birthright citizenship. That one deserves an entire post, maybe another day. Let’s just quote the 14^th Amendment, Section 1, in case you need a refresher:

All persons born or naturalized in the United States AND SUBJECT TO THE JURISDICTION THEREOF, are citizens of the United States and of the State wherein they reside.

I highlighted the part so many people fail to notice. This isn’t for persons who are accidentally born here when a mother with a visitor’s visa goes into labor during a vacation; such a child would still be a citizen of the mother’s and/or father’s country. In fact, people from our protectorates, such as American Samoa, who can freely visit here, are not entitled to citizenship merely by being born here. The purpose of the 14^th Amendment was to cover those persons who had been born and living in the country but denied citizenship during slavery. This amendment was ratified in 1868, shortly after the Civil War. It was much later (about a century later) that someone got the idea of applying this to illegal aliens, creating “anchor babies.” This is a correction of that misinterpretation. (Robert Gouveia does a good discussion here.) 

President Trump has said it will not affect those previously born here (prior to January 20, 2025) under the prior administration’s interpretation of the Amendment. So, all those people out there claiming he’s throwing young people out, some of whom have never known another country—get a grip. He’s just making sure the world no longer comes here thinking that, if they can just have a baby here, who would get citizenship, then that might be their ticket to being allowed to stay. President Trump is removing that illegal-alien magnet. And, of course, it’s going to be litigated.

There’s plenty more to cover, but this will suffice for now. And from here we just get to see how it plays out. My guess is that a very high percentage of these executive orders will bring us back into balance, and closer to the Constitution. And that will be a good thing.

Try Reading the Constitution, Part III

We’re doing a series celebrating the US Constitution. See Part I and Part II.

The premise is that you might have had the idea that the Constitution is hard to understand, too much legalistic language as well as too many archaic words. I assert that it’s actually pretty accessible and together maybe we ought to give it another try. So you might want to get out your pocket Constitution to follow along.

Today, we’ll continue the Constitution reading exercise with Article II, pertaining to the executive branch. After the four sections of this article, we’ll cover some problems we’re having with this article.

 

Article II

Article II of the Constitution lays out the powers of the US President, the chief executive officer (CEO) of the United States.

He does not make laws—although he can use his influence to persuade Congress to make certain laws.

He does not make a budget—although he can use his influence to persuade Congress to budget according to his priorities.

Section 1 describes how the President, together with the Vice President, shall be elected. This is where the Electoral College instructions and rules are laid out, which were changed with the Twelfth Amendment in 1804. Then come the requirements to be the president:

·         Must be a natural born citizen.

·         Must be 35 years of age by the time of the election.

·         Must have resided within the United States for 14 years.

That last one means, if a person grew up as a citizen, but lived with parents outside the US, or additionally worked outside the US as an adult, and hasn’t accumulated 14 years living in the US, they can’t run for the office of president. The founders were trying to prevent someone whose allegiance was, either secretly or openly, to another country from using the technicality of citizenship to try to gain power in our country.

Then come the rules for removal from office—for impeachment and conviction of crime, or for death, resignation, or inability (possibly temporary until the disability is resolved). There’s more about this in the 25^th Amendment, passed in 1967.

Next comes information about the president’s compensation. Then there’s the requirement of taking an oath of office, which is:

“I do solemnly swear (or affirm) that I 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.”

Section 2 gets into what the President’s duties will include:

·         Be Commander in Chief of the US military and the militia of the several states (the state national guard).

·         Grant reprieves and pardons for offenses against the US (except in cases of impeachment).

·         Make treaties, with advice and consent (2/3 of those present) of the Senate.

·         Appoint ambassadors and other public ministers and consuls, with advice and consent of the Senate.

·         Appoint Supreme Court justices and other officers of the US, with advice and consent of the Senate.

·         Fill vacancies that may happen during the recess of the Senate, which expire at the end of the next Senate session.

Section 3 requires the President to report to Congress concerning the State of the Union. While this can be done in writing or some other way, it has become the traditional State of the Union Address, usually in the first quarter of the year.

And there’s this important statement:

“He shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”

He’s going to see to it that the laws are carried out. And he’s going to delegate powers to—that is, commission—the officers to do their assigned work in seeing that the laws are carried out.

Section 4 is one more word about impeachment, which applies to the President, Vice President, and all civil Officers of the United States—which includes federal judges and other appointees. Impeachment is the prosecution part, done by the House of Representatives. The trial on the offense(s) happens in the Senate, where the officer can be removed from office if convicted. Impeachable crimes include “Treason, Bribery, or other high Crimes and Misdemeanors.” That term “high Crimes and Misdemeanors” has been the subject of some debate, although it was clearly understood by the founders. The phrase was intended to include large crimes against the state that might not be labeled as either treason or bribery.

We covered this in more detail last December, when history on this subject was taking place. You can read that here. But, in short, picture a diagram that has a large circle encompassing all serious crimes against the state (nation), inside of which are treason and bribery. So anything that isn’t treason or bribery is included as “high Crimes and Misdemeanors.”

Problems with Executive Power

The Regulatory State

There has been a serious change in the balance of power in recent years. The founders assumed that each branch of power would jealously guard its own power, thus preventing any encroachment by the other branches.

But we’ve had a sort of new, extra-constitutional (that is, beyond the Constitution) branch we might call the regulatory state.

The balance of power has shifted, because laws are being written that cede power from the legislative branch to the executive branch. They delegate sweeping powers to these regulatory agencies to determine the laws, write them as regulations, and enforce them. In addition, they often have power to judge and punish as well.

So many things are wrong with rule by regulatory agency. Its rulers are unelected. Some are experts in particular fields, but mostly they are bureaucrats, administrators, who may not be in touch with the realities of those doing business in that economic sector.

They are granted lawmaking power—the legislative branch’s job—but they’re part of the executive branch. It’s as if the legislative branch said, “You’re smarter than we are; you just do what you think is best. We’re sure you’d never do anything but what is the right decision for everybody.” And then the legislative branch turns their attention to their other assignments, such as doing impeachment investigations.

As we talked about in our post on Article I, legislating is the only main assignment of Congress. In addition, they put out the budget. Although since 2006 they have mainly failed to put out a budget, and have done what is called a “continuing resolution,” which keeps funding everything as it was funded in the previous year’s budget with some set percentage of increase to balance against inflation. In other words, Congress is very busy not legislating or budgeting.

By ceding that power to “the experts,” the legislative branch has greatly increased the power of the executive branch. That hasn’t been a good thing; it has unbalanced the constitutionally designed balance of power. We’ve talked about that in more detail:

·         Regulatory Tyranny, August 26, 2013

·         Red Tape Cutting, May 31, 2018

Executive Orders

There’s another problem with the executive branch: Unconstitutional Executive Orders. This comes under Section 3, where we’re told about the President's duty to faithfully execute the laws and commission officers to do that work.

The purpose of an executive order is to direct the people working under the President concerning how to execute the laws duly enacted by Congress. Executive orders are meant to be procedural. And they must be simply a way to carry out of the laws; they cannot change the laws or create new laws. We have purposely separated powers so that the executive branch does not have lawmaking powers.

The number of executive orders a president gives is not relevant.

For example, If you have a president, say Reagan, who uses executive orders liberally but perhaps not even a single time for any purpose but directing the executive branch in how to keep the law, then you have no executive order problem.

Then, suppose you have another president, say Obama, who less frequently gives executive orders but often as an edict to create law rather than to follow laws set by Congress, then each of those offenses is breaking the law.

Party doesn’t matter. The policy itself—along with its efficacy or intent—doesn’t matter. The color of the president matters not a whit. What matters is the breach of the law.

The President cannot act extralegally. He cannot make law. We do not live in a monarchy, dictatorship, potentate, banana republic, or any other tyranny. We live in a constitutional republic. We have a written law granting only limited enumerated powers to the federal government, so that our God-given natural rights are not infringed.

Can a president act beyond those enumerated powers? Presidents have. But not legally. Presidents have typically gotten away with exertion of power beyond what is granted depending on their popularity.

So the next question is, How do we limit the damage of a president’s acting beyond his authority in direct conflict with Constitutional limits?

The ultimate constitutionally designed response is impeachment. But first there should be other ways, less painful to the nation.

Congress can write legislation to override the executive overreach, so there is no lack of clarity on what the law actually is.

Congress can stonewall the illegal orders. With the power of the purse, which they hold, they can defund anything that relates to executing his orders. They can do targeted defunding—rather than simply refusing to agree to a continuing resolution, for which the shutting down of the government will be blamed on them. It’s easier to target spending in an actual budget, so that’s incentive for Congress to do that basic job.

The Senate could withhold approval of political appointments until the president rescinds his illegal orders. Senator Ted Cruz attempted this back in 2014.

There are also lawsuits. Then-Texas Attorney General (and Governor-elect) Greg Abbott filed a lawsuit in 2014 based on the significant damage to the state caused by the president’s insistence on a porous border.

It may be that courts can suspend the immediate enactment of any illegal order. This usually requires someone with standing (a person, business, or state or local government that has suffered measurable damages) to sue for redress.

Assertion of 10^th Amendment rights by the states could also be a solution.

All of the solutions require political will, which means that many presidents do a political calculation before the intentional overreach.

So, executive orders used as lawmaking continues to be a threat to our constitutional republic.

The question for each executive order isn’t whether the president has the right to give an executive order; he does. The question is whether the order is following the Constitution and merely executing the law as defined by Congress.