The Pros and Cons of Governance by Executive Order

President Trump started his second term with a flurry of executive orders that will make immigration harder and undermine our sense of America--what it is and how it relates to its government. 

That’s unquestionably dramatic, but it’s valuable to remember that during his first term, Trump showed little interest or aptitude for the process of making government work. As a result, many declarations stood as threats and symbolic gestures because he didn’t do the work to earmark money to fund his projects or clear the legal hurdles standing in his way.

Nothing we’ve seen so far suggests that he has sharpened his skills or attention span for anything more substantial that rule by decree and Tweet, and in some cases he has used the executive order to announce measures that already exist.

This analysis by our friends at Alliance San Diego sums up 15 of the immigration-related executive orders and their take on how the orders will actually play out.

• 1. Declare a national emergency at the southern border in order to draw funds from the Armed Forces for wall construction, transport of immigrants, and detention space. Analysis: Trump tried this in his first administration and was sued by Southern Border Communities Coalition (SBCC), Sierra Club and ACLU, and the courts stopped him. Without extra funding from Congress, resources drawn from the Armed Forces could affect military operations.
• 2. Declare an “invasion” at the southern border to suspend entry for anyone who engaged in an invasion or who cannot provide “sufficient” medical information, reliable criminal history or background information. Analysis: While this could lead to a widespread shutdown of the border, that is unlikely for economic reasons, but everyday commuters across the border could face increased scrutiny and harassment.
• 3. Assign the military the mission to “seal” the border and repel mass migration events. Analysis: We are waiting to see what the plan looks like. The order calls for the military to come up with a plan within 10 days. It is unclear how the military will respond given their competing priorities and no new resources.
• 4. End birthright citizenship on February 20, 2025 for the children of women unlawfully present as well as the children of women present lawfully but temporarily (such as on a visa) if the father is not a US citizen or permanent legal resident. Analysis: ACLU has already sued to challenge the order as a violation of the US Constitution.
• 5. Re-enforce registration requirements under 8 USC 1302 for undocumented immigrants to register, and prioritize enforcement of unregistered immigrants. Analysis: This requirement has always existed, but is rarely enforced due to capacity constraints. Until and unless Congress appropriates more money for enforcement, there will be no additional capacity. That said, Trump’s focus on this may increase fear and anxiety.
• 6. Expansion of expedited removal from border communities to the whole country, rendering unlawful immigrants here less than 2 years deportable without due process. Analysis: Expedited removal has existed as part of federal immigration law for years, but was limited in enforcement to the border region (100 miles from the border) under the Biden Administration. This action expands expedited removal to the entire country, as it was previously applied under the first Trump administration.
• 7. Impose mandatory detention of individuals in deportation proceedings. Analysis: Without additional resources, detention capacity is limited to current levels, making the implementation of this action impractical. The average daily rate for detention is between $250 to $500 per person.
• 8. Withhold funds from “sanctuary” jurisdictions that interfere with federal immigration enforcement. Analysis: Trump attempted this during his first term and was defeated in court. Additionally, CA and other elected leaders have made clear that they are not going to interfere or assist with federal immigration enforcement.
• 9. Require employment verification under existing law at 8 USC 1324a. Analysis: This is not a change in law, but represents a focus of the Trump administration. As with other proposed actions, there is insufficient funding to enforce employment verification. If it was enforced, it would be devastating to the economy and would lead to mass poverty of workers, citizens and immigrants, affected by a lack or loss of documents such as disaster survivors.
• 10. Terminate categorical parole (temporary permissions) like for Cubans, Haitians, Nicaraguans, and Venezuelans; paroles will still be available on a case-by-case basis. Analysis: It is unclear what will happen when parole expires for individuals who are currently on the program here in the US and working lawfully. We need additional details to be able to determine the full impact of this action.
• 11. Suspend the refugee program effective January 27, 2025. Analysis: Each year, the President determines whether and how many refugees to admit into the country.Trump slashed refugee admissions to historic lows during his first term, and this a continuation of his previous position that harmed refugee families.
• 12. Impose additional vetting of visa applicants and possibly suspend visas for certain countries starting on February 20, 2025. Analysis: This occurred in the first Trump administration and was used to discriminate. It is too soon to know how this will be implemented this round. [In our experience, this also made process take more time since additional funds were not allocated to perform the additional vetting. It was simply added to the staff's workload.]
• 13. Reinstitute the “Remain In Mexico” program (Migrant Protection Protocol) that requires people to wait outside of the country to seek asylum. The order ceases usage of the CBP One app that facilitated asylum applications. Analysis: If the Trump administration succeeds in implementing all the previously stated actions, there will be no asylum seekers coming into the country to then be placed in this program.
• 14. Review and potentially audit NGOs assisting undocumented immigrants. Analysis: Most NGOs receiving federal funding to assist immigrants are already under strict reporting guidelines. This is unlikely to have any impact.
• 15. Denial of public benefits for undocumented immigrants. Analysis: Most undocumented immigrants are not eligible for federal public benefits, so this is unlikely to result in the loss of any benefits. Nevertheless, it is likely to create fear and discourage eligible families from applying for benefits.

The new administration will continue to attempt to govern through executive action because, if the past is any indication of what to expect, the president can’t resist a shortcut. It’s easier to announce executive orders than it is to develop a fully formed legislative package that would have a chance of getting through the House and Senate. That tendency means we’re likely to see a lot of shocking executive orders signed and announced as news. Some will have real, painful consequences, but some will be acts of … what’s the opposite of value signaling?

We need to resist the urge to panic and read the last paragraphs of the stories that announce them. Down after the discussion of the political impact and what people say about the executive order, is where we might find out what steps if any have been taken to actually make it happen.