On the campaign trail, President-elect Donald Trump made a lot of promises regarding his first day in office. At a January 2016 rally in Burlington, Vermont, he vowed to “get rid of gun-free zones on schools,” telling the crowd, “my first day, it gets signed, okay? My first day. There’s no more gun-free zones.” Problematically, no such bill has been passed for him to sign.
On October 22, Trump put his Day One promises in writing, listing 18 actions he would begin or accomplish before the end of Inauguration Day (actually, as he explained to the London Times, “day one” means the following Monday). Overall, these are more reasonable than ending gun-free zones, but not all of them are equally easy to accomplish. Below is a sample of the promises Trump probably can – and probably can’t – follow through on once the weekend is over.
Term Limits
The first item on Trump’s list was to “propose a Constitutional Amendment to impose term limits on all members of Congress.” Taken literally, that’s easy enough. He already has proposed it. In fact the idea has a long pedigree in Republican politics: Newt Gingrich’s 1994 “Contract with America” (which Trump’s “Contract with the American Voter” recalls) promised “a first-ever vote on term limits to replace career politicians with citizen legislators.” The Republicans delivered on the promised vote, which got a bare majority in the House but not the two-thirds supermajority required to amend the Constitution. The bill would have limited senators to two six-year terms and House members to six two-year terms.
NAFTA
Trump promised to “announce my intention to renegotiate NAFTA or withdraw from the deal under article 2205.” Again, he’s already announced that intention. Unlike passing a constitutional amendment, though, withdrawing from the North American Free Trade Agreement (NAFTA) is easy: it doesn’t even require a vote in Congress. The entire text of article 2205 of the NAFTA treaty reads, “A Party may withdraw from this Agreement six months after it provides written notice of withdrawal to the other Parties. If a Party withdraws, the Agreement shall remain in force for the remaining Parties.”
Just leaving would be much simpler than renegotiating the treaty. Trump runs the risk of finding himself in the same bind as former British Prime Minister David Cameron, who successfully outmaneuvered the anti-European Union (EU) UK Independence Party by promising a renegotiation of Britain’s membership in the EU and a chance for voters to voice their opinion through an in-out referendum. The EU’s other countries were unsurprisingly reluctant to give a suite of special concessions to Britain. Having campaigned to appeal to euroskeptics, Cameron was an unconvincing cheerleader for the post-renegotiation “In” camp. Britons voted to leave the EU, and Brexit negotiations are set to begin in March. Europe is likely to be even less patient with British demands than it was during Cameron’s renegotiation.
TPP
Another trade deal, the Trans-Pacific Partnership (TPP), has been signed but not enacted. The agreement, which would link the U.S. to 11 Pacific Rim countries (but not China), is dead in the water. Trump hardly needs to announce the U.S.’s withdrawal: his election sent a clear signal that TPP is no more. There is some discussion of the remaining countries’ following through with the agreement, but the prospect is less appealing without the participation of the mammoth U.S. market. It’s more likely that China’s alternative, the Regional Economic Partnership (RCEP), will take its place. That result is what Obama hoped to avoid when he argued in TPP’s favor in 2015: “We can’t let countries like China write the rules of the global economy. We should write those rules.”
Start Deporting
Trump promised to “begin removing the more than 2 million criminal illegal immigrants from the country.” Lucky for him the process is already underway. Obama had already deported more undocumented aliens than any previous president: 2.5 million of them as of September 30, 2015. Obama has claimed to focus on those with prior criminal convictions, as Trump now says he wants to (at the beginning of his campaign, Trump vowed to deport every undocumented immigrant, regardless of their adherence to non-immigration laws); Immigration and Customs Enforcement (ICE) says that 91% of “interior removals” – those apprehended by ICE agents – in 2015 were criminals, though less than 42% of total deportees were.
Assuming ICE carries on at this pace, it can easily remove 2 million undocumented immigrants from the country over the course of two terms. If Trump only gets one term, the task becomes trickier. It is also not certain where he gets his figure of 2 million criminal undocumented immigrants from, so he might have to follow the Obama administration’s lead and deport non-criminals as well. (For a full list of Trump’s proposed policies, see our Trump Economy page.)
Hiring Freeze
Trump promised to impose “a hiring freeze on all federal employees to reduce federal workforce through attrition (exempting military, public safety, and public health).” Taken literally, that seems impossible. He’s just begun the process of hiring cabinet secretaries (and their undersecretaries, etc.) diplomats, U.S. attorneys and marshals. Trump will need to make over 1,000 hires that require Senate confirmation, according to the New York Times. Another 3,000 hires will be up to his discretion alone – or those he delegates to.
Presumably the incoming administration will stop hiring once it has staffed his departments, meaning that as employees leave, the government will shrink. Reagan promised to do something similar, but the government grew under his watch. The last time it shrunk was during the Clinton administration.
Trump’s transition team has tried to impose a hiring freeze on the Obama administration. Incoming press secretary Sean Spicer told the Washington Post in late December that Trump’s team had cut a deal with the outgoing administration not to hire any more personnel after December 1. A memo from the Fish and Wildlife Service, published by the Post, calls that deal’s effectiveness into question: dated November 17, the memo describes an “all hands on deck” “45-day Hiring Plan,” suggesting that the spree ended January 1. Whether Trump will honor employment offers made in the twilight of the Obama administration remains to be seen. Reagan refused to do so with Carter’s hires, and a court backed him up.
Unwind Obama
Trump made a series of interconnected promises: to impose “a requirement that for every new federal regulation, two existing regulations must be eliminated”; to “lift the restrictions on the production of $50 trillion dollars’ [sic] worth of job-producing American energy reserves, including shale, oil, natural gas and clean coal”; to “lift the Obama-Clinton roadblocks and allow vital energy infrastructure projects, like the Keystone Pipeline, to move forward” and to “cancel every unconstitutional executive action, memorandum and order issued by President Obama.” (See also: Can President-Elect Trump Make Coal Stocks Great Again?)
Obama acquired a reputation for governing through executive orders, which critics called undemocratic and supporters defended in light of congressional intransigence. The problem with executive orders, though, is that the next president can undo them with the stroke of a pen.
As the Congressional Research Service pointed out in late November, however, not all executive actions are executive orders, and not all are so simple to undo. Some are: discretionary agency directives and guidance documents, such as the 2013 memo that advocated a hands-off approach to enforcement of federal marijuana laws in states with legal markets, can also be signed away.
Agency rules, however, are much trickier. These are developed by agencies under executive control in order to fill out and implement legislation passed by Congress. As such, they have the force of law. Take the JOBS Act. It was signed in 2012, but the rules governing Title IV, which allows for companies to raise money more easily from non-wealthy investors without going public, did not go into effect until June 2015. There are a number of reasons: first, rules take time to write, and many government agencies – such as the SEC, which wrote the JOBS Act rules – are severely understaffed. Second, rule-making is subject to rules. They have to be backed by research in many cases, which takes time to conduct. Agencies are required to take public comments for a month or more, which must then be reviewed. All told, making a rule can take years.
Undoing a rule can take just as long. Neil Kerwin, president of American University and an expert on executive rule-making, told NPR’s Planet Money, “the general consensus is that a president seeking to repeal a rule would have to write a regulation to alter or eliminate it. So you go through the same process to repeal a rule or alter a rule as you do to write one in the first place.”
In other words, Trump can do away with many of Obama’s executive actions on Day One: the July 2014 order that federal contractors cannot discriminate against LGBT workers, for example, has come under Republican fire, and it could go immediately. Some of the executive actions that most irk Republicans, however, are not executive orders, but agency rules. The Clean Power Plan is one, and it appears to be the target of Trump’s promise to “lift the restrictions on the production of … energy reserves.” The rules associated with Dodd-Frank, while not written by Congress, are similarly challenging to undo, since Congress delegated the task of fleshing out the law to the White House.
On the other hand, the Trump administration has one – and possibly two – routes to undo Obama’s more recent rule-making. One is the Congressional Review Act, passed in 1996, which allows the legislature to destroy any rule made during the previous 60 days. It has been tried nine times, five of them during the Obama administration, but was only successful once: in 2001, Congress skewered a Department of Labor rule related to ergonomics in the workplace.
Predictably, the Obama administration has been on a rule-making tear in its final days. The January 17, 18 and 19 editions of the Federal Register, where agency rules are published, run to 2,876 pages. All of these and more could be eliminated by Congress, but the Congressional Review Act’s track record is spotty. Even more devastatingly – from Obama’s perspective – Congress may pass a law undoing all rules made since June.
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danetteoneal1
Danette O'Neal, PhD 