Todd Heisler \/ The New York Times
A section of the Mexican border fence is shown near Douglas, Ariz. President Donald Trump signed an executive order Wednesday, Jan. 25, 2017, to direct federal funds toward the building of a wall on the southern border.
By Matt Apuzzo, New York Times News Service
Thursday, Jan. 26, 2017 | 2 a.m.
WASHINGTON \u2014 With Twitter posts, leaks and executive orders, President Donald Trump is moving quickly to show he will make good on some of his key campaign pledges. Within a 24-hour period this week, he ordered or signaled significant new policies on border security, terrorism, crime and voting.
But as Trump\u2019s predecessor learned in 2009 when he ordered the military prison at Guant\u00e1namo Bay closed, implementing policy is not as easy as the stroke of a pen.
Details to carry out security policies exceed Twitter\u2019s 140-character limit and in some cases the public can only infer Trump\u2019s plans. Here is what he has promised, and what authority he has to carry it out.
No political promise came to symbolize Trump\u2019s candidacy like his pledge to build a wall between the United States and Mexico. The costs and logistical headaches of such a project \u2014 which would cut through private property \u2014 have always been daunting, but Trump\u2019s supporters were unfazed: \u201cBuild the wall!\u201d they chanted.
On Wednesday, Trump signed an order to build it and announced that work would begin immediately on a project that is estimated to cost more than $20 billion.
He offered few details, including any that would address the fact that Congress, not the White House, writes the checks. The Antideficiency Act prohibits the government from spending money for any reason that Congress has not appropriated.
The president can announce whatever plans he wants. But whether the plan is \u201cbuild a wall\u201d or \u201cclose Guant\u00e1namo,\u201d if Congress does not go along, it can amount to wishful thinking. As one Republican lawmaker said of Barack Obama\u2019s 2009 order on Guant\u00e1namo, \u201cThis is an executive order that places hope ahead of reality.\u201d
Trump, a real estate developer by trade, seemed undeterred. \u201cWe do not need new laws,\u201d he said Wednesday. \u201cWe will work within the existing system and framework.\u201d
While that appeared to mean that he intended to shift some already appropriated money to the wall\u2019s construction, it was unclear where the funds would come from. He cannot easily cannibalize one program to pay for the wall.
\u201cIt doesn\u2019t work out like that,\u201d said William C. Banks, a Syracuse University law professor.
So is Trump\u2019s executive order meaningless? Not entirely. The Department of Homeland Security can start planning and discussing the project now and ask for the bulk of the money later. And if Trump really wants to break ground immediately and avoid Congress, there is \u2014 as always in Washington \u2014 a workaround that would let him do so at least in theory.
Two laws, the Economy Act of 1932 and the Feed and Forage Act, give the president some spending wiggle room. The Economy Act allows presidents to move money between departments in some circumstances.
The Feed and Forage Act, first enacted in 1799, was intended to allow military leaders in the field to spend money on essential clothing and medical supplies. But presidents have used that power broadly. Former President George H. W. Bush started the first Gulf War under that authority, Banks said.
In theory, Trump could order the military to spend extra money to protect national security, then move around the funding within the bureaucracy to pay for a wall built by the Department of Homeland Security, Banks said. But such an accounting trick has never been used to go around Congress on such a massive scale, Banks said. Lawsuits would be inevitable. It would be much easier to simply ask Congress for the money.
But for now, Trump gets to say he is making good on a political promise. And if Congress scuttles the plan later or lawsuits hold it up? \u201cHe can say he did his part,\u201d Banks said. He compared the move to the playbook of former President Barack Obama: \u201cIt is very Obama.\u201d
Trump is preparing an executive order that would clear the way for the CIA to reopen overseas \u201cblack site\u201d prisons.
According to a draft of the order, Trump also intends to review the agency\u2019s now-defunct interrogation program, in which interrogators tortured some suspected terrorists through waterboarding and extensive sleep deprivation. Other suspects were shackled in painful positions, doused with water and menaced with dogs.
Trump can revoke the current ban on CIA prisons, but it would take much more than his signature to restore the interrogation program. Federal law now restricts interrogation techniques to those authorized by the Army Field Manual.
And unlike when the tactics were first authorized \u2014 when government lawyers said no long-term harm would come from the tactics \u2014 it is now clear that many prisoners suffered persistent psychological damage. That would make the program even more difficult to justify under anti-torture laws.
Trump could try to ignore all this, saying he has the authority to do so as commander in chief. But his Cabinet nominees seemed to reject that theory in their confirmation testimony. As a practical matter, reopening the secret prisons would require finding countries willing to host them. Those who did so for former President George W. Bush have faced a decade of investigations, lawsuits and recriminations.
Trump threatened federal intervention in Chicago if the city does not address violent crime. Chicago saw at least 762 homicides in 2016, the highest figure in two decades \u2014 more than Los Angeles and New York combined.
\u201cIf Chicago doesn\u2019t fix the horrible \u2018carnage\u2019 going on, 228 shootings in 2017 with 42 killings (up 24 percent from 2016), I will send in the Feds!\u201d he wrote on Twitter.
It was not clear what Trump meant by \u201cfeds.\u201d But Trump has wide latitude in this area. The Justice Department could dispatch more agents from the FBI and the Drug Enforcement Administration to Chicago.
In more extreme situations, presidents and governors have activated the National Guard, but usually to keep the peace during riots and unrest.
In a series of Twitter posts, Trump reiterated his false assertion that Hillary Clinton won the popular vote by 2.8 million ballots only because unauthorized immigrants and others voted illegally. There is no evidence of such widespread fraud (as Trump\u2019s campaign lawyers have acknowledged), and Trump offered none. Nor did he say what sort of investigation he had planned.
Voter fraud is a crime, so Trump may have been referring to an FBI investigation. But the president does not have the authority to direct FBI criminal investigations. Those require a criminal predicate, or reasonable suspicion. Generally, though, Trump has the authority to order a fact-finding investigation \u2014 call it a commission, task force or working group. That would allow the White House to make its findings public.<\/p>\n

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