President Donald Trump’s team took little effort to consult with federal agency lawyers or lawmakers as they churned out executive actions this week, stoking fears the White House is creating the appearance of real momentum with flawed orders that may be unworkable, unenforceable or even illegal.
The White House didn’t ask State Department experts to review Trump’s memorandum on the Keystone XL pipeline, even though the company that wants to build the pipeline is suing the U.S. for $15 billion, according to two people familiar with the matter.
Defense Secretary James Mattis and CIA Director Mike Pompeo were “blindsided” by a draft order that would require agencies to reconsider using techniques that some consider torture, according to sources with knowledge of their thinking.
Only a small circle of officials at the Department of Health and Human Services knew about the executive action starting to unwind Obamacare, and they only got a heads-up the night before. Key members of Congress weren’t consulted either, according to several members. And at a conference in Philadelphia, GOP legislators say they had no idea whether some of the executive orders would contrast with existing laws — because they hadn’t reviewed them.
The break-neck pace of Trump’s executive actions might please his supporters, but critics are questioning whether the documents are being rushed through without the necessary review from agency experts and lawmakers who will bear the burden of actually carrying them out. For example, there are legal questions on how the country can force companies building pipelines to use materials manufactured domestically, which might not be available or which could violate trade treaty obligations. There’s also the question of whether the federal government take billions from cities who don’t comply with immigration actions — legal experts said it was unclear.
“You want to make sure when you’re dealing with high-stakes, important issues you’re getting the best information from the breadth of expertise that exists in government,” said Max Stier, president of the Partnership for Public Service, a nonpartisan nonprofit that supports the civil service. “You don’t know what you don’t know.”
The White House did not respond to a request for comment.
Trump, less than a week into his presidency, is continuing the improvisational style he used to run his company, his campaign and his transition. He’s relying on a small circle of trusted advisers to act decisively. And he’s emphasizing the theatrics of autographing official-looking leather-bound documents in the Oval Office.
People familiar with Trump’s planning say he wanted daily events to show supporters he would follow through on the daily items of his agenda. “He was determined to show people that he’s getting to work from Day One,” one person familiar with his planning said. This person said he wanted to take charge and show his supporters that Obama’s tenure was decisively over.
But the process is playing out chaotically both inside the White House and throughout the federal government.
Inside the West Wing, knowing what is in the executive orders is almost impossible for some aides, staffers say. They have been written by Stephen Miller, Trump’s senior White House adviser for policy, and Steve Bannon, Trump’s chief strategist, with the help from incoming Attorney General Jeff Sessions and some of his top aides, according to people familiar with the matter. Ideas for some of the Trump executive orders came from transition officials and so-called “landing teams,” sources say, who weren’t working in the White House.
Aides have also said that it was a game-time decision sometimes when asked if Trump was going to sign a certain executive order that day.
The only other administration that began with such swift executive actions was Ronald Reagan’s, said David Vladeck, a law professor at Georgetown University and a former FTC official. Those were more heavily vetted.
“If you don’t run these kinds of initiatives through the affected agencies, you’re going to get something wrong,” Vladeck said. “A government by edict is not a sustainable idea.”
By contrast, the Obama White House ran executive orders through a painstaking weeks-long process of soliciting feedback from agencies and briefing lawmakers, according to a former official. Sometimes it even asked expert lawyers in the private sector to check its work.
House aides said they were largely unaware of Trump’s executive orders as they were being drafted, but that “it isn’t that surprising” coming from Trump, according to a senior Republican aide. Congressional leadership has tried to keep up with shifting policies from the Trump administration, according to several aides, who say Trump’s top officials often seem uninterested in details.
“Well I think that you’ll see this is obviously a transition that’s underway here,” South Dakota Sen. John Thune, the third-ranking Senate Republican, said in Philadelphia as he opened the Republican retreat here. “I expect you’ll see, probably, better coordination with time.”
There’s also an irony in how Trump is fully flexing his executive order power, considering the approach goes against what Trump and Republican members of Congress have said about executive action in the past.
For example, in 2012, Barack Obama’s increased interest in using executive orders developed a critic: A certain Manhattan billionaire. “Why is Barack Obama constantly issuing orders that are major grabs of authority?” Trump had said on Twitter.
Trent Lott, a lobbyist and former senator, said he continues to have deep reservations about any aggressive use of executive action, whether it comes from a Republican or Democrat.
“You don’t want to have an imperial president,” said Trent Lott, a lobbyist and former senator. “It’s just not the best way to govern. These things need to be figured out by Congress. We have allowed the presidency to become too powerful.”
Lott said he understood that Trump wanted to come out of the gate running, and that he applauded some of the actions, including the pipeline change. “But I’ve been where Mitch is going to be, who is going to have to say, Mr. President, we cannot do that or we will not do that. Sometimes, the president needs that,” Lott said, talking about Senate Majority Leader Mitch McConnell.
Experts warned that the quick moves could hurt Trump down the line, and cause him to eventually slow down.
The State Department exhaustively reviewed the Keystone XL pipeline over many years before Obama rejected it, but agency officials’ expertise wasn’t called upon, even though reviving the project could prove complicated. It isn’t clear how Trump’s memo, which invites TransCanada to reapply for a permit, might bear on the company’s $15 billion claim against the U.S. under the North American Free Trade Agreement.
“The notion you would do something like this on an issue impacting a claim against the U.S. government for $15 billion without getting a full briefing from people involved — that’s more than unusual, that’s reckless,” said Keith Benes, a former State Department lawyer handling Keystone.
There’s also the issue of Trump’s sweeping orders on immigration on Wednesday that came with big promises but little clarity on who will ultimately foot the bill. For example, building a wall along the Mexico border is likely to cost $20 billion of more, and tripling border enforcement agents will likely cost billions more.
Trump has promised that Mexico will reimburse the United States for the wall construction costs and the executive order included vague language about the financing of the additional agents.
“He needs money to do it,” said Theresa Cardinal Brown, the director of immigration policy for the Bipartisan Policy Center. “You can’t shuffle money around even within a department. You have to go back to Congress.”