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The first two weeks of the Trump administration were like a poorly edited action movie — the plot developments came so fast and furious that the audience could scarcely keep track of what was happening. The march! The wall! The travel ban! Not even weekends offered a respite from the flood of news.
By that frenetic standard, Week 3 was practically calm. After a lull in new executive orders early in the week, Trump on Thursday signed a handful of actions related to criminal justice but announced no major new policies. Protesters didn’t pack airports or the National Mall. Arguably the most talked-about political news of the week didn’t even involve the president: It was Senate Republicans’ decision to stop Elizabeth Warren from reading a letter from Coretta Scott King, Martin Luther King Jr.’s late widow, criticizing President Trump’s nominee for attorney general, Jeff Sessions.
“Calm” is a relative term, of course. On Saturday, Trump lashed out at the federal judge who temporarily blocked his travel ban; on Thursday evening, a federal appeals court upheld that judge’s decision and refused to reinstate the ban. On Tuesday, Trump’s controversial pick to run the Department of Education, Betsy DeVos, required an unprecedented tie-breaking vote from Vice President Mike Pence to win Senate confirmation. The confirmation vote for Sessions was almost as close. And on Wednesday, Trump attacked a private company on Twitter for dropping his daughter’s clothing line. Under normal circumstances, that would all seem like a pretty wild week.
Even a modest slowdown, though, could be a welcome opportunity for Trump’s supporters and opponents alike to pause and take stock. Various news outlets this week reported that Trump was looking to impose more discipline on his leak-prone White House. Activists, meanwhile, are trying to figure out how to turn mass protests into a sustainable opposition movement. And journalists, lobbyists, business executives and others who care about the nitty-gritty of policymaking are at last getting a chance to assess what the whirlwind of executive orders and other announcements will mean in the real world.
Here are some of the major policy developments from the past week:
Separation of powers: A new precedent?
Trump’s criticism of a federal judge last weekend may have been shocking to people concerned about judicial independence, but it wasn’t exactly surprising. As a candidate, after all, Trump made headlines for his attacks on the judge presiding over a lawsuit involving one of Trump’s businesses. What was perhaps more surprising was the decision by Neil Gorsuch, Trump’s nominee to replace the late Antonin Scalia on the Supreme Court, to call the president’s remarks “demoralizing and disheartening” in a meeting with Democratic Sen. Richard Blumenthal of Connecticut. (The meeting was private, but Gorsuch must have known the comments would leak.)
Gorsuch’s comments may be a preview of battles to come once he is on the court. On most issues, Gorsuch is expected to be a staunch conservative similar in ideology to Scalia or Samuel Alito. But when it comes to executive power, his views could be more complicated. In particular, Gorsuch has been a skeptic of “Chevron deference,” the legal doctrine (named after a 1984 Supreme Court decision involving the oil giant) that governs how much leeway federal agencies should have to interpret laws passed by Congress. The Chevron principle puts lots of power in the hands of the executive branch: It holds that when Congress’s intent is unclear, courts should defer to agencies’ interpretation of the law. Critics argue that courts should play a larger role in deciding the proper interpretation — a view that Gorsuch, as a judge on the 10th U.S. Circuit Court of Appeals, appeared to endorse in a 2016 opinion.
Chevron deference — and executive power more broadly — could be one of the key issues during the Trump administration. Trump’s Day 1 executive order on the Affordable Care Act ordered federal agencies to “waive, defer, grant exemptions from, or delay the implementation of” parts of the law. His executive order on the Dodd-Frank financial reform law similarly asks agencies to re-evaluate how they interpret and enforce the law. And his immigration policies rely heavily on a broad interpretation of executive authority.
Gorsuch won’t single-handedly tip the balance of the court on Chevron deference, according to Jeffrey Pojanowski, a Notre Dame law professor who has written on the subject. But he could nudge the court toward a narrower view of executive authority that could imperil key parts of Trump’s agenda. Trump’s recent attacks on the judiciary, Pojanowski said, could make pushback from the courts more likely. “If he continues to badger the courts. … I could imagine courts tightening the screws on Chevron deference,” Pojanowski said in an interview. “You may get a less deferential judiciary just because you don’t want to look like a toady.”
Criminal justice: Better data?
One of Trump’s executive orders this week set up a new “Task Force on Crime Reduction and Public Safety” that will share information and attempt to identify strategies for reducing illegal immigration, drug trafficking and violent crime.
During the campaign, Trump spoke frequently about the need for law and order, and often described inner cities in near-apocalyptic terms. Sessions, during his swearing-in ceremony on Thursday, referred to a “dangerous permanent trend” of rising crime. Neither depiction is accurate. Despite a recent — and concerning — increase in murders in many big cities, the overall rate of violent crime remains near multi-decade lows. Even murder is still well below the level of the 1990s, although in some cities, such as Chicago, the recent increase has been dramatic.
Trump’s executive order calls for the new task force to “evaluate the availability and adequacy of crime-related data” and to identify ways to improve data collection. That would be welcome. Crime data is mostly collected at the local level and is often out-of-date, inconsistent and full of holes, particularly in certain areas such as shootings by police officers. The Obama administration took steps to plug some of the holes before leaving office; whether Trump and Sessions continue that progress remains to be seen.
Health care: Marketplaces may need a life vest
The insurance marketplaces created by the Affordable Care Act are going to need some help, and soon, if they’re going to be functional in 2018. When open enrollment closed on Jan 31, more than 400,000 fewer people had enrolled than the year before, according to a report from the Centers for Medicare and Medicaid Services that was released Feb. 3.
A Trump administration decision to cancel ads promoting enrollment appears to be at least partly to blame, and the drop was most likely among a key constituency: the young and healthy.
The drop in sign-ups is small compared with the more than 12 million people who use the state and federally run marketplaces, but it’s a clue that decisions by the administration and confusion about the law’s future could hobble the insurance marketplaces even before the law is replaced. In mid-January, about half of the 39 states1 that use the federally run exchange were outpacing their enrollment from the previous year. By the end of the selection period, however, just a quarter had enrollment above 2016 numbers. In some states, such as Arizona, the slowdown in enrollment could be due in part to rising premiums. But in others, such as Michigan and Virginia, sign-ups declined despite relatively modest increases in prices.
There’s good reason to believe that the missing enrollees, people who would have signed up had there been more advertising, were predominantly young and healthy. For starters, in previous years, young adults tended to wait until the last minute to enroll. But also, the ad buys that were canceled were largely targeted specifically at young, uninsured adults, according to Benjamin Wakana, who was a spokesman for the Department of Health and Human Services under the Obama administration. A drop in late sign-ups by young, healthy individuals would likely translate into higher prices next year and less incentive for insurers to stay in the marketplace at all. That’s what happened in previous years, according to research out earlier this week from the Brookings Institution, which found that sicker-than-anticipated enrollees were a major reason that insurers left the marketplace.
To make matters more complicated, insurers don’t have until next year to see what Republicans have in store for the ACA — they need to give preliminary paperwork for 2018 to the government in April. Republicans are reportedly trying to get legislation together by the end of February, although that’s far from a sure thing given the stark differences in current proposals. Even having something by the end of this month, however, doesn’t give insurers a lot of time to decide whether to stick around the marketplaces next year.
The Cabinet: The end of the “nanny problem”?
Both as a candidate and as president, Trump has promised to enforce strictly the country’s immigration laws. But so far, at least, Trump’s commitment to stay tough on immigration hasn’t extended to his own Cabinet nominees.
This week, Andrew Puzder, Trump’s nominee for labor secretary, admitted to once employing an undocumented immigrant as a housekeeper. Puzder, who if confirmed would be responsible for enforcing labor laws, said he was unaware of the worker’s legal status and terminated her employment once he found out. (He also said he paid back taxes in full to the Internal Revenue Service.) Puzder is the second of President Trump’s appointees revealed to have hired an undocumented worker. Wilbur Ross, Trump’s choice to run the Commerce Department, also admitted to hiring an undocumented worker for household help in 2009. (He said he wasn’t made aware of the employee’s legal status until the Senate confirmation process.)
The issue doesn’t look likely to trip up Ross’s nomination; he was approved by a Senate committee in late January after a relatively friendly confirmation hearing and is now awaiting a vote by the full Senate. Puzder’s fate is unclear; the restaurant CEO’s confirmation hearing has been rescheduled four times due to his failure to file financial paperwork, and is now set for Feb. 16. But so far, at least, there is little indication that his undocumented housekeeper will be a major roadblock to his confirmation.
Admissions of this nature aren’t new to the appointee confirmation process, but the leniency might be. In 1993, members of the Senate opposed appointing Zoe Baird, Clinton’s nominee for attorney general, because she had hired two undocumented immigrants to care for her child and had failed to pay Social Security taxes on their wages. Baird withdrew from the nomination, saying that the controversy — which came to be called “nannygate” — would obstruct her ability to lead the Justice Department. Similarly, in 2001, Linda Chavez, Bush’s nominee for labor secretary, withdrew after revealing she previously housed an immigrant seeking refuge from Guatemala in the early 1990’s. (Chavez never employed the woman, but did give her money and claimed she wasn’t fully aware of the woman’s illegal status.)
It isn’t just on immigration that standards seem to have changed. In 2009, Barack Obama’s nominee for the newly created position of chief performance officer, Nancy Killefer, withdrew after it came out that she had failed to pay taxes for household employees. But Trump’s nominee to run the Office of Management and Budget, Mick Mulvaney, looks likely to be confirmed despite failing to pay $15,000 in taxes for a babysitter.
The Cabinet 2: Trump’s contested nominees
Speaking of Trump’s Cabinet, his nominees have received record-breaking amounts of opposition in the Senate. Devos’s confirmation as secretary of education on Tuesday was a nail-biter. Jeff Sessions’ confirmation as attorney general on Wednesday was not quite as tight, with a vote of 52-47, but both votes add to Trump’s growing list of highly contested Cabinet-level nominees.
The opposition to Trump’s nominees has largely fallen along party lines, and the number of “nay” votes has increased since the first few confirmations. It seems that for Democrats, opposing Trump’s nominees has become a political necessity as the party’s base wants its representatives to slow Trump’s agenda however and wherever they can. West Virginia Sen. Joe Manchin is the only Democrat expected to vote “yes” in any of the upcoming confirmation votes for which there have been preliminary floor counts.2 Several of Trump’s remaining Cabinet-level confirmations are shaping up to be a series of partisan battles.
More from FiveThirtyEight
- The “Fight for $15” movement has succeeded in raising the minimum wage in cities and states across the country. But waiters, bartenders and others who work for tips have been largely left behind.
- During the campaign, Trump promised to get tough on illegal immigration. But the places with the most undocumented immigrants mostly voted for Hillary Clinton.
- Trump’s travel ban and other actions have sparked talk of “constitutional crises.” But what does that even mean? There are really four kinds of crises.
- Trump wants to undo much of what Obama did. But so far, at least, Trump hasn’t rolled back many of his predecessor’s executive orders.
- Trump’s travel ban, if it eventually takes effect, could affect thousands of doctors working in the U.S., many of them in rural areas.
- Congressional Republicans want to overhaul the way the U.S. taxes companies. But Richard Rubin of The Wall Street Journal explains that the politics of the so-called border-adjusted tax are complicated.
- Many of Trump’s supporters want him to limit cheap imports that they believe cost American jobs. But many of those same communities also rely heavily on exports, which could be imperiled if Trump limits free trade. Ana Swanson, Ted Mellnik and Darla Cameron of The Washington Post dug into the data.
- Trump says his immigration crackdown will focus on undocumented immigrants who have committed crimes. But he is significantly broadening who is considered a “criminal alien.” Fernanda Santos profiles one woman caught up in the net.