Yesterday, President Trump's pick for Attorney General, Jeff Sessions, was sworn into his office. Trump used the occasion to sign three executive orders relating to crime. In this post, I want to briefly scrutinize these orders and explain what impact they may have on our criminal justice system.
One order calls for the creation of a task force on crime reduction. The new Attorney General will appoint people to the task force and they will meet and discuss ideas and make recommendations for Trump. A second order is titled "Preventing Violence Against Federal, State, Tribal, and Local Law Enforcement Officers." This order is also about exploring new ideas and strategies to "enhance the protection and safety" of law enforcement officers. The third order concerns enforcing federal law against transnational criminal organizations that employ violence and derive revenue "through widespread illegal conduct." Working groups will be established to discuss ideas and make recommendations to Attorney General Sessions and President Trump.
To begin, these executive orders do not, by themselves, raise any legal or constitutional problems. Sometimes presidents use executive orders to usurp the lawmaking power that is assigned to the Congress. These orders do not fall into that category. These orders only concern the apparatus of the executive branch itself. Trump wants to make sure the Department of State, Homeland Security, and Justice Department are sharing information and coordinating their efforts, for example. There's no new law or restriction that applies to persons in the U.S. that did not already exist last week.
Second, Trump's orders are also fairly conventional. This is what Republican presidents usually do. President Reagan and President George H.W. Bush created task forces and working groups to make recommendations about how to better organize the government and fight crime.
Third, one can also fairly say that Trump is simply following through on his campaign promises. Illegal immigration was the centerpiece of his candidacy and these orders are mostly about the specifics. It is true that many people from Mexico and Central America try to make it to the U.S. on their own. Yet it is also true that there are transnational criminal organizations that are in the business of human smuggling. Trump wants recommendations on how to strengthen and improve the government's efforts to combat these organizations. No major surprise about that.
All in all, some might say that the orders are "no big deal."
Well, not so fast. There are several reasons that supporters of limited, constitutional government ought to be concerned about the orders that Trump signed yesterday. For the past 30 years, the Right has been sounding the alarm about the growth of government and the federalization of crime. In the landmark Lopez ruling, the Rehnquist Court invalidated the first federal criminal law in 60 years because it was simply beyond Congress's power to enact. Former Reagan Attorney General Edwin Meese has testified about the sorry shape of the federal criminal code and the need to scale it back. The Federalist Society has also drawn attention to that problem.
Trump and Sessions seem not only uninterested, they seem intent on exacerbating the problem. The orders instruct the task forces and working groups to see whether existing laws are "adequate" and to recommend legislation "defining new crimes" for the president's consideration and signature. Same thing with the federal "funding programs." If they're not adequate, bring the president budgetary proposals. Note that the budget of the Department of Justice has been on on upward trajectory for many, many years. The Trump administration seems to want that growth to continue.
Trump's heart may be in the right place. He notes the awful circumstances in so many of our cities for poor minorities who have to live in violent neighborhoods and attend lousy schools. Unfortunately, Trump seems to view the Constitution's separation and division of powers as bugs instead of features. To paraphrase The Cato Handbook for Policymakers, the identification of a problem does not mean that the government should undertake to solve it, and the fact that a problem occurs in more than one state (carjackings, lousy schools, obesity, termites) does not mean that it is a proper subject for federal policy.
We will be sending complimentary copies of the Handbook to President Trump, Attorney General Sessions, and all members of Congress to remind them that the federal government is already too big, and that our fundamental law, the Constitution (to say nothing about our fiscal crisis), requires recommendations for downsizing federal operations.