Donald J. Trump. (AdMedia/Newscom)
Even if you believed all the factual claims that Donald Trump made in his acceptance speech, and agreed that the president should stamp out all violent crime, that we should scrap existing trade agreements, and that we should build a wall to keep out unlawful aliens and send back the 11 million already here, the would-be President Donald Trump is simply mistaken in his assertion that he could take care of these problems unilaterally once in the Oval Office.
Basic principles of federalism and separation of powers, taught in basic constitutional law, if not before, will preclude him from having all but the most minimal of impacts in each of these areas.
Start with law and order, and vehicular homicide, in particular. Those are, generally speaking, state law crimes, enforced by local district attorneys, most elected locally, who rely on local police to prevent their occurrence and catch the perpetrators when they happen.
Nothing that Trump can do will alter that basic truth. Take the case cited by him of the recent college graduate who was killed in Nebraska and her alleged killer, an unlawful immigrant, was set free.
The law was Nebraska’s, the law enforcement personnel were Nebraska’s, the prosecutor was a state, not a federal official, and the judge who released the accused was a state not a federal judge. What could a different president have done differently? Nothing.
There is one possibility of the federal government becoming more involved in stopping street crime. We could substantially increase the size and jurisdiction of federal law enforcement agencies such as the Federal Bureau of Investigation, Drug Enforcement Administration and Bureau of Alcohol, Tobacco, Firearms and Explosives. But these are not policy prescriptions that Republicans normally support.
Trump could also try to make more local crimes federal offenses, but the U.S. Supreme Court, under Chief Justice William Rehnquist, made it clear that federalism precludes much of what Trump might try to do.
And, of course, Trump as our next president could not accomplish any of this on his own. He would have to change existing laws and have the necessary appropriated funds to make these changes. This would require the approval of Congress. That is not likely to follow, no matter what the outcome of November’s election.
That brings us to the problem that Trump will have in trying to undo existing trade agreements. He is correct that he can seek to renegotiate the North American Free Trade Agreement and others, but our counterparts are unlikely to go along, especially if the deals are as favorable to other countries as he claims.
His threat is that he can walk away from these agreements which, if they were treaties alone, might be possible.
The problem for Trump is that after these agreements were made, Congress enacted them into U.S. law, and, just like any other federal law, they can be changed only by the passage of another law, which means two houses of Congress must agree with him. At that point, he would face all of the special interests that he identified in his acceptance speech — and more — that supported the trade deals in the first place and that would fight very hard to see that they are retained.
Given the current inability of Congress to pass even the most noncontroversial legislation, there is little chance that it will overhaul or abandon NAFTA and other agreements that Trump opposes.
CONGRESS AND THE WALL
Finally, there is the notion of the wall and the immigrants. There was no mention in his acceptance speech of his ludicrous idea that Mexico would pay for the wall, which means that the U.S. taxpayers will have to foot the bill of many billions of dollars.
That requires Congress to vote for spending all that money, at the same time that President Trump would be asking Congress to enact tax cuts and end the current debt and reduce long term deficits. Maybe a Trump-compliant Congress would follow his lead, even if the numbers don’t add up, but one thing is for sure, he could not build the wall on his own.
The same is true for his proposal to deport the 11 million or so immigrants who are here illegally.
Even the state of Texas, which sued the Obama administration over his plan to provide interim lawful status to 4 million such aliens, did not contend that the president had the personnel or the money to remove more than the 400,000 that the current administration has been deporting every year.
The next president can increase that number only if he or she is able to persuade Congress to provide for and pay the law enforcement agents to round up, the lawyers to bring charges, and the immigration and other judges to decide that the other more than 10 million should be removed.
Trump may think he can make that happen on his own, but if he or his legal advisers had taken Constitutional Law I, they would have known that this will occur only if Congress goes along and creates the positions and funds the entire endeavor.
There is one final irony in Trump’s claims that his election will change all of this. One of the main objections of the Republican Party to the way that President Obama has made policy is that he has done it on his own, precisely what Donald Trump proposes to do. Unilateral action by a president, if Congress will not go along? Perhaps, not so bad if your pick becomes the president.