Steve Bannon
Credit: Gage Skidmore/Flickr

Most people credit Steve Bannon with crafting the executive orders Trump signed during his first days in the White House. They unleashed a storm of upheaval and created the illusion that the new president was actually going to fulfill his campaign promises.

With the benefit of hindsight, it might be time to revisit that assumption. It looks like Bannon is actually pretty bad at crafting executive orders. Let’s review some of them.

There was the one about lobbying that has become Trump’s swipe at draining the swamp (while he fills the entire federal government with Wall Streeters). Here’s what the Washington Post wrote about that executive order:

On Jan. 28, Trump signed an order that he said would impose a five-year ban on lobbying after government service by executive-branch officials. This appeared broader than the language in the contract, which said it would apply to White House officials, but it actually fails to fulfill his repeated pledge to “drain the swamp.” There is no reference in an executive order to a ban on congressional officials. The five-year ban applies only to lobbying one’s former agency — not becoming a lobbyist. Moreover, Trump actually weakened some of the language from similar bans under Obama and George W. Bush, and reduced the level of transparency. Given that this action in many ways is a step backward, we will label this as a promise broken.

Then there was the one about using American steel in pipelines—with the glaring exception later acknowledged about the Keystone pipeline.

The Keystone XL Pipeline will not be subject to President Donald Trump’s executive order requiring infrastructure projects to be built with American steel, a White House spokeswoman said today.

The most notable executive order was Trump’s so-called “travel ban,” which initially caused chaos at airports all over the country and was eventually blocked. Even though it is still winding its way through the courts, Kevin Drum noted a couple of weeks ago that it is effectively dead.

As you’ll recall, the original immigration order was temporary: it would last about three months, which would give the Trump administration time to put “extreme vetting” procedures into place. That three months is up at the end of May…

At some point in May or June, the case becomes legally moot.

Finally, as Roger Parloff writes today, the most unconstitutional of Trump’s executive orders is probably the one about pulling federal funding from sanctuary cities. The first problem is that there is no clear definition of the term “sanctuary city” and the executive order doesn’t bother to provide one.

Its defunding provisions begin by giving the secretary of Homeland Security seemingly unreviewable authority to declare municipalities to be “sanctuary jurisdictions,” and to do so without clearly defining what such a jurisdiction is. (The vagueness of this definition, and the absence of an opportunity to contest the designation, both appear to violate due process.)

From there, Parloff writes that the order’s constitutional flaws are “multilayered, fundamental, and unsalvageable.”

[It] appears to offend the principles of separation of powers, due process, and interpretations of both the Tenth Amendment (establishing that the federal government only has powers specifically delegated to it by the Constitution) and limits on Congress’s spending power that have been mainly championed by conservative justices — including President Trump’s own claimed judicial hero, Antonin Scalia.

It strikes me that the very argument the Supreme Court used to give states the right to reject Medicaid expansion in Obamacare might also apply here.

As a matter of fact, this executive order is so unconstitutional that even Trump’s Justice Department isn’t defending its core activities in lawsuits that are piling up against it.

Instead, [DOJ] has adopted a version of the now-familiar refrain with which the president’s lawyers and handlers defend so many of his statements: We mustn’t take him so literally…

They suggest that the order need not be applied as broadly as its literal language might permit. Since the secretary of Homeland Security has not yet designated any city a “sanctuary jurisdiction” — the event that, according to the order’s terms, triggers the attorney general’s obligation to take “appropriate enforcement action” — they argue that the lawsuits are premature (or, “not ripe,” in lawyers’ terms), and that the plaintiffs lack “standing” to sue (i.e., haven’t been harmed yet) and do not face “irreparable harm” (a necessary condition before they can win a court injunction blocking the order).

If the Justice Department is correct, then, might the defunding threat really have just been an empty, symbolic propaganda gesture?

To the extent that Bannon knew what he was doing when he crafted this executive order, the answer to that last question would be “yes,” it is nothing but “an empty, symbolic propaganda gesture.” On the other hand, perhaps Bannon is simply incompetent (or willfully ignorant) when it comes to understanding the Constitution.

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