A Trump Administration: Social Policy Fiats on Day One
“We want to identify maybe 25 executive orders that Trump could sign literally the first day in office.”1
That is how one advisor described President-elect Donald Trump’s plan for January 20, 2017—his Inauguration Day. Trump’s victory sent shockwaves across the nation, leaving many Americans wondering what to expect from his Administration. The President has immense power to shape American social policy. Come January 20th, Trump can use his vast executive authority to not only upend a wide array of federal policies upon which many Americans currently rely but also to issue new executive orders with detrimental effects on the lives of millions of others—all on his first day in the White House. While we can’t know what exactly he’ll do, this memo provides a snapshot of some of the actions President-elect Trump could unilaterally take to undercut President Obama’s legacy, as well as the values upon which our democracy is built.
Access to Birth Control
Defunding Planned Parenthood
Donald Trump was unambiguous about his plans to revoke Planned Parenthood’s Title X funding during the campaign, vowing, “I am committed to defunding Planned Parenthood as long as they continue to perform abortions.”2Title X funding, which by federal law cannot be used to pay for abortion, provides contraception, gynecological exams, pregnancy testing, STI testing, and breast cancer screenings to millions of American women—and men—who could not otherwise afford such care.3
Republicans in Congress have tried and failed to defund Planned Parenthood several times. Because at least 14 states have now taken steps themselves to limit or prevent Planned Parenthood from receiving Title X funds, President Obama just finalized a rule that prevents them from doing so—a rule that the Trump Administration could overturn with the agreement of Congress if it so chooses.4 Not only that, but President Trump could even issue an executive order of his own to exclude Planned Parenthood and other similar organizations from Title X eligibility going forward. This would have serious consequences for the nearly 3.7 million Americans who turn to Planned Parenthood specifically for birth control access every year—especially considering that, in 98 counties, Planned Parenthood is the only option for low-income people to access publicly funded contraception.5 And each year, Planned Parenthood provides more than 270,000 pelvic exams, 360,000 breast exams, and 4.2 million STI tests and treatments to patients of all income levels.6
Replacing the Mexico City Policy
Donald Trump has promised to take strong action to restrict abortion, even going so far as to say, “You have to ban it…there has to be some form of punishment” for the women who seek them (a position that he subsequently softened to avoid the ire of even the pro-life community).7 As President, Trump could take several actions to make it harder for women to access abortion services in the U.S. and around the world, including reinstating the “Mexico City Policy” on his first day in office. Also known as the “Global Gag Rule,” the Mexico City Policy bars international aid organizations that receive any U.S. funding from performing, referring to, or discussing abortion services in any way—even with their own money. The Obama Administration revoked the policy in January 2009, but Republican presidents since Ronald Reagan have implemented it immediately upon taking office.8 The last time the policy was put into place, 16 countries around the world were completely cut off from American-funded contraception, and as a consequence the abortion rate more than doubled in the African countries most reliant on U.S. family planning assistance.9
Cutting Off Access to No-Cost Contraception
There’s no question that Donald Trump plans to undermine what he refers to as the “terrible” Affordable Care Act (ACA) shortly upon being sworn-in, but exactly how long that process will take and whether Congress will repeal the law (or certain parts of it) is not yet clear. One of his first targets could be the requirement that insurance companies cover all FDA-approved methods of contraception with no out-of-pocket cost for patients. The Trump Administration could act immediately and unilaterally to remove that coverage from the existing health care law without Congressional approval—ensuring that regardless of how long it takes to repeal health care reform, women would be cut off from access to no-cost contraception without delay. While the ACA requires health insurance companies to cover all women’s health preventive services free of charge, which services are defined as preventive is determined by the Department of Health & Human Services within the Administration. And the man Trump has announced as his Secretary-designee of that agency, Republican Representative Tom Price of Georgia, is adamantly opposed to the ACA’s birth control coverage requirement. When asked in 2012 what would happen to women if the birth control requirement were rescinded, Rep. Price said, “Bring me one woman who has been left behind. Bring me one. There’s not one. The fact of the matter is this is a trampling on religious freedom and religious liberty in this country.”10 If the Trump Administration, via a Price Department of Health & Human Services, removes the contraception coverage requirement, the 48.5 million American women who benefit from that and other preventive care services would lose access to no-cost birth control.11 And that’s a big problem given that the most effective forms of birth control, like the IUD (intrauterine device) and implant, are also the most expensive—costing upwards of $800.
When asked on the campaign trail which of President Obama’s executive actions he would undo, Trump replied, “I would be getting rid of a lot of them very quickly in the first hour. One of them would be immigration."12 Over the last four years and in the wake of Congressional failure to act on immigration reform, the Obama Administration has created two temporary “deferred action” programs that protect law-abiding immigrants from deportation and allow them to legally work and attend school. The first action applied to “Dreamers,” or undocumented immigrants who were brought to the United States as children through no fault of their own. The second, which is currently halted by the courts, attempted to keep families together by offering similar protection for undocumented immigrants whose children are U.S. citizens or lawful permanent residents.13 To qualify, those who participate in these programs must meet a strict set of requirements, including satisfying minimum residency standards, paying fees, and proving they do not pose a threat to public safety or national security, but in return, they are free to come out of the shadows, receive work authorization, and legally contribute to the U.S. economy.14
During the election, Trump was not coy about his plans for these programs, promising “We will immediately terminate President Obama's two illegal executive amnesties, in which he defied federal law and the Constitution to give amnesty to approximately five million illegal immigrants.”15 And though post-election Trump has softened his rhetoric on Dreamers (saying “we’re going to work something out that’s going to make people happy”), even Republicans in Congress are worried President Trump will initiate their deportation.16 That’s why they’ve already introduced legislation to protect Dreamers from Trump and his Administration.17 Because if President Trump were to permanently rescind these programs, 728,000 Dreamers whose immigration violations were no fault of their own would suddenly be forced back into the shadows, and the Trump Administration would be left with a list of their names and addresses to hand over to his promised “deportation force.”18
Amping Up Indiscriminate and Widespread Deportations
As President, Donald Trump will have immense authority to put immigration enforcement on overdrive, raising serious concerns that he could deport millions of immigrants, reinstate the controversial Secure Communities program, and detain hundreds of thousands of people at our southern border.
The executive branch has wide discretion over how our immigration laws are enforced, and President Obama has used his executive authority to focus the government’s limited resources on deporting dangerous criminals and people who are threats to our national security. In doing so, he revoked the Bush-era Secure Communities program, through which local law enforcement had to check the immigration status of anyone they arrested, even for something as minor as a traffic violation. Trump has loudly criticized the President’s priorities and specifically promised to “restore the highly successful Secure Communities program, good program,” despite the fact that it was widely criticized for racial profiling, constitutional violations, the erosion of trust between law enforcement and immigrant communities, and the deportation of nonviolent, low-priority individuals.19 Trump has also called for the immediate and ongoing detention of all immigrants caught at the border until they are deported.20 If President Trump uses his executive authority to implement this type of enforcement regime, it would significantly burden our enforcement resources and cost hundreds of millions of dollars, requiring the detention of nearly 500,000 more people each year.21
Banning Gun-Free Zones
Donald Trump categorically opposed gun-free zones during the campaign, including those in schools, saying, “My first day, it gets signed, OK? My first day. There's no more gun-free zones.”22 That’s just one of the reasons the National Rifle Association was so supportive of Trump's candidacy—spending more money to elect him than any other major political organization, endorsing him earlier than either Mitt Romney or John McCain, and even speaking from the stage at his nominating convention for the first time in history.23 Though gun-free zones in public schools were established via federal legislation in 1995 (and thus cannot be revoked simply by the stroke of a President’s pen), President Trump could use his executive power to eliminate other federally protected gun-free zones like those in or on military bases, U.S. court houses, post offices, or other federal buildings like those housing veterans’ services. His rhetoric suggests that Trump may even attempt to use his authority to revoke gun-free zones established by state law, like those prohibiting gun possession in some churches, bars, or daycares. This would allow people to bring loaded guns almost anywhere—even if it trampled on the rights of private property owners who want to keep their establishments weapons-free.
Reopening Gun Seller Loopholes
When common-sense gun safety legislation failed to pass in Congress after the shooting at Sandy Hook Elementary School, President Obama issued a series of executive actions aimed at reducing gun violence in America and keeping guns out of the wrong hands.
Donald Trump has called them “no good” and “no fair,” and he has sworn to “unsign that so fast.”24 One of the most important of those actions clarified the ambiguous legal definition of who is “engaged in the business” of selling firearms. Under a 1968 federal law, anyone “engaged in the business” must follow certain rules, like running background checks on all gun sales. President Obama’s executive action closed the loophole that, in some cases, allowed those who were selling huge numbers of guns to circumvent these rules by claiming they were just hobbyists or selling from their personal collections. If President Trump makes good on his word to reopen this loophole, it would again be legal for someone who sells hundreds of guns per year and even has his or her own business cards or website to claim they are not “in the business” and sell countless guns to complete strangers without running background checks.
Keeping Records Out of the Background Check System
Donald Trump has opposed expanding criminal background checks for gun sales to the approximately 34% of gun sales that currently don’t require them, arguing that we don’t need them because “very few criminals are stupid enough to try and pass a background check.”25 Given that stance, President Trump may consider walking back President Obama’s actions to strengthen background checks by requiring Social Security records to be submitted to the system. Social Security records are already flagged when an individual lacks the capacity to contract for themselves or manage their own affairs due to their mental health, and even before Obama’s action, this determination disqualified someone from buying or owning a gun under existing federal regulations.26 However, until Obama acted, Social Security records were not shared with the background check system, meaning that these people who were ineligible to buy a gun under federal law would not be identified even if a background check was run.27 President Trump could not only prevent this Obama rule from being finalized, he could even replace it with one prohibiting this record-sharing. That would mean a person whose inability to manage their own affairs prohibits them from cashing a check would be free to buy a gun—no questions asked.
Gay and Transgender Americans
Rolling out a Red Carpet for Workplace Discrimination
Trump has referred to the actions President Obama took to increase federal protections for LGBT workers as among a list of “executive orders issued by Presidents who have no regard for the Constitution.”28
In June 2009, President Obama issued memoranda to federal agencies prohibiting discrimination against federal employees on the basis of their sexual orientation or gender identity and extending employment benefits to the domestic partners of those employees.29 In 2014, he went even further by prohibiting companies who contract with the federal government from discriminating against their employees because of sexual orientation or gender identity (adding those characteristics to race, sex, and others upon which federal contractors who are paid by taxpayer dollars were already prohibited from discriminating).30 President Trump could immediately reverse these policies, inviting discrimination against gay and transgender Americans by the federal government itself and in the 24,000 companies that contract with it—an estimated one-fifth of the American workforce.31
Targeting Transgender People
After some initial waffling, Trump came out in support of a controversial North Carolina law that prohibits transgender people from using the restroom aligning with their gender identity, saying “I’m going with the state. They know what’s going on, they’ve seen what’s happening.”32 When asked in a follow-up question if his properties offer gender-neutral bathrooms, Trump replied, "I hope not."33 And as recently as October, he referred to allowing openly transgender Americans to serve in the military as “ridiculous,” pledging to “get away from political correctness.”34
Contrast that with the Obama Administration, which opposes the North Carolina law and announced this past June that it interprets the U.S. Education Amendments of 1972 to prohibit discrimination against transgender students in public schools.35 That same month it also announced it is ending the ban on transgender Americans serving in the Armed Forces.36 And through the implementation of the Affordable Care Act, the Administration has also barred gender identity discrimination in insurance coverage. As a result of this rule, transgender Americans can no longer be denied insurance coverage for the health care they need.37
The Trump Administration could immediately repeal the Obama guidance on transgender students, and may do just that, since Trump has said that “the federal government should not be involved" in whether transgender students are discriminated against in public schools.38 And Trump’s invitation to discriminate may not stop at schools—he could also reinstate the ban on transgender people serving in the military and revoke the protections that allow the 1.4 million transgender people in this country to purchase insurance to cover their health care.39
Cracking Down on States That Have Legalized Marijuana
Donald Trump has been unclear about his stance on marijuana policy, saying both that it is a states’ rights issue and that he thinks legalization in Colorado “is bad and I feel strongly about it.”40 Clearer is the position of his Attorney General-designee, Alabama Republican Senator Jeff Sessions, who famously said in a Senate hearing last spring that “good people don’t smoke marijuana.”41 Arguably one of the Senate’s most high-profile opponents of marijuana legalization, Sessions has harshly criticized the Obama Administration’s marijuana policy and said, “We need grownups in Washington to say marijuana is not the kind of thing that ought to be legalized, it ought not to be minimized, that it is in fact a very real danger.”42
In 2013, the Obama Administration instructed federal prosecutors to focus their limited resources on the most serious aspects of marijuana-related crimes, like distribution to minors and sales by gangs and cartels, rather than on states experimenting with legalization of personal medical or recreational use.43 The following year, President Obama went even further, providing the banks and other financial institutions that are serving marijuana businesses that are legal in their states with a path to do so while minimizing the risk of federal prosecution for money laundering.44 Because both policies are merely acts of prosecutorial discretion, Trump and Sessions could revoke them immediately—and prosecute any of the banks, medical patients, customers, and business owners participating in the markets in the 28 states that have legalized marijuana for medical or recreational purposes. This would take us back to a world where dispensaries were raided and their proprietors arrested and prosecuted, just like what happened during George W. Bush’s presidency—even before a single state had legalized recreational use. The Trump Administration, led by a Sessions Department of Justice, would also be able to immediately file lawsuits against the states that have legalized marijuana in any way and spend millions of dollars or more in court trying to force those 28 states to comply with the blanket federal marijuana ban.
President-elect Donald Trump’s first day of executive actions could mark one of the most dramatic reversals of federal policy the nation has ever seen. As he himself has said, “The good thing about an executive order—I walk in, sign, I don’t have to go through Congress.”45 Without Congressional involvement, the Trump Administration could alter policies that impact the lives of nearly every American. This doesn’t even account for his legislative agenda or who he nominates to the Supreme Court. If President Trump undoes a vast portion of President Obama’s political legacy on his first day in office, the country may be unrecognizable by the end of his first 100 days.