The Easiest Way for Trump To Do Stuff Is To Not Do Stuff

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Presidents are powerful — but not, as the first two months of Donald Trump’s presidency have made clear, all-powerful. They can make policy through executive orders but not prevent the courts from blocking those orders, as judges have twice done with Trump’s travel ban. They can make appointments but not ensure that those appointments win Senate confirmation (see also: Andrew Puzder) or that they can stay in office amid scandal (see also: Michael Flynn). And whatever the eventual fate of the Republican plan to replace Obamacare, it’s safe to say that Trump is learning that getting legislation through Congress is no simple task, even when your party enjoys substantial majorities in both chambers. (On Thursday afternoon, House Republican leaders delayed a planned vote on their health bill as they scrambled to shore up enough support to ensure its passage.)

But there’s one area where a president can have a huge impact on policy with comparatively few barriers standing in his way: enforcement.

Federal agencies have wide latitude in how strictly they enforce laws and regulations. When former President Barack Obama wanted to grant legal protection to the so-called DREAMers — undocumented immigrants who had entered the country as children — he did so via his enforcement authority: He announced his administration wouldn’t target immigrants who met certain criteria. And while that is an extreme (and legally controversial) example, all administrations set enforcement priorities. Should the Justice Department focus on white-collar criminals or old-school mobsters? Should the Securities and Exchange Commission go after penny-stock scammers or hedge fund billionaires? How aggressively should agencies pursue tax cheats, polluters or minimum-wage violators?

Somewhat paradoxically, enforcement power is a particularly potent tool for a president such as Trump who wants the government to do less rather than more. That’s because it’s easier to stop enforcing an existing rule than to create a new one. Want a new rule cracking down on housing segregation? That will require years of studies, hearings, comment periods and revisions. Want to stop — or, at least, de-emphasize — enforcing the rule once it’s in place? Just do it — no hearings required.

Presidents don’t have complete latitude when it comes to enforcement. Courts intervened when Obama tried to extend his immigration protection beyond the DREAMers to their parents. Perhaps more significantly, enforcement is carried out by agencies and commissions, not by presidents themselves. It will take time for Trump’s regulatory philosophy to filter through the federal bureaucracy, especially given the many vacant positions throughout the government.

Still, one of the best — and earliest — signs of how Trump will govern will be in his enforcement actions. Or at least, it will be if the administration releases the data needed to make those priorities clear. As The New York Times noted last week, the Occupational Safety and Health Administration has stopped issuing regular press releases touting enforcement actions against companies that violate worker safety rules. A spokeswoman for the agency, Nancy Cleeland, said OSHA is continuing to carry out inspections and enforce rules, and separate data on the agency’s web site shows it has levied substantial fines in at least a handful of cases since Trump took office. But it has at a minimum become more difficult to monitor OSHA’s enforcement activity.

OSHA is part of the Labor Department, one of the last remaining federal departments without a Senate-confirmed secretary. (Trump’s nominee for the post, Andrew Acosta, had his confirmation hearing this week.) Even in agencies that do have leaders, it’s too soon to draw reliable conclusions about how the new administration will go about enforcing the rules. But not much too soon — it is likely that long before Republicans can leave their mark legislatively, Trump will be enacting policy through which rules he chooses to enforce, and which ones he doesn’t.

The environment: Pressing ‘pause’

There is another tool, besides nonenforcement, that a small-government-minded president can use to limit the role of government: delay. Take environmental regulation, for example. When the Obama administration ended, it left a number of new environmental rules in various states of limbo — some had been approved but not yet published in the Federal Register (without which they can’t be implemented); others had been published, but had not yet reached their official implementation dates. That left it up to the Trump administration to complete the process — and it seems to be in no rush to do so.

The exact reasons for the delays vary from rule to rule, in ways that help shed light on the inner workings of the early Trump administration. Take, for example, the “dental amalgam rule,” an Obama administration rule that was supposed to be published in the Federal Register on Jan. 24. (The rule concerned amalgam, a metal alloy that contains about 50 percent mercury, along with silver, tin, copper and other metals that is used in dental fillings. The EPA wanted to limit how much of the alloy can flow down dentists’ drains.) EPA Administrator Scott Pruitt apparently supports the rule, but it has been held up because of Trump’s “two-for-one” policy, an executive order that requires agencies to eliminate two rules for every new one they implement. (Meanwhile, the National Resources Defense Council has sued the administration over the delay.)

Other rules have gotten held up for a simpler reason: lack of people power. On March 20, Pruitt issued a memorandum delaying the implementation of five late-breaking Obama rules that had already been previously delayed. Pruitt’s memo says the agency hasn’t had time to review the rules because it hasn’t had the people to dedicate to them. These include a new standard on formaldehyde emissions from composite wood products and a rule that changes the certification process for companies that spray pesticides, among others. These rules are now supposed to go into effect on May 22. There are no nominees for the Senate-approved EPA positions Pruitt says are important to getting these rules reviewed.

In other cases, the delays are more clearly the result of philosophical differences between the new administration and its predecessor. Remember the fertilizer plant in Texas that exploded back in 2013? After that disaster, which killed 15, Obama issued an executive order calling for the EPA to create stricter standards for safety at chemical plants — something his administration had already been trying to do, without success, through Congress. That rule, which was finalized in December 2016, wasn’t well received by anybody. The chemical industry doesn’t like the third-party audits it requires, while environmental advocates say it didn’t go far enough — focusing on emergency management coordination and leaving actual plant safety upgrades as optional. The rule should have gone into effect March 21, but Pruitt has frozen it until June 19. Why? It turned out, the fertilizer plant fire was caused by arson, not accident. At the urging of industry, Pruitt wants to reconsider whether the rule is necessary.

Health care: The still-uninsured

One reason that the Republican health care bill ran into trouble is that it would leave (according to the Congressional Budget Office) 14 million more people without health insurance next year. But with the bill’s status pending, it’s a good time to take a deep breath and look around at a group that hasn’t gotten much attention in recent months: people who are uninsured right now.

Approximately 28.2 million people are currently uninsured in the U.S. For some of them, it’s easy to understand why: Around 2.6 million are people with incomes below the federal poverty line, about $12,000 per year for an individual, and who live in states that chose not to expand Medicaid, the government health insurance program for the poor. Another 4 million or so are likely undocumented immigrants,¹ and therefore ineligible for any federal assistance to get coverage.

But that still leaves more than 20 million without insurance. The most reliable data on who is uninsured comes from the census, but the numbers for 2017 won’t be available until September of 2018. In the meantime, Enroll America, a nonprofit that was created to promote insurance coverage after the passage of the Affordable Care Act, and Civis Analytics, a data firm with roots in Obama’s re-election campaign, have been regularly gathering data about the uninsured in order to determine where to target enrollment efforts. It doesn’t exclude the undocumented or people in the Medicaid coverage gap, but it does provide a snapshot of the demographics of the uninsured.

Their data shows that among 18-64 year olds, the uninsured are concentrated in the South and West, particularly Texas and Florida, which have large populations and high uninsured rates. It also shows high concentrations among certain groups. Before the Affordable Care Act took effect, young adults and Latinos were among the most likely to be uninsured; much was written about the need to sign both groups up for coverage if the law’s insurance marketplaces were going to work. Both groups made progress: Latinos saw the largest decline of any race or ethnicity, dropping from 26 percent uninsured in 2013 to 15 percent in 2016. But both are still more likely to be uninsured than any other group. More than 1 in 5 adults age 18-34 were uninsured in 2013, according to the Enroll data, while less than 1 in 10 are today. But that still leaves 6.7 million young adults without insurance.

The White House: First daughter

There has been lots of chatter this week about how Ivanka Trump’s new, more formal role at the White House — where she will serve as an unpaid senior adviser with an office in the West Wing — is unprecedented. And it is — but mostly because Ivanka is Trump’s daughter, not his wife or son.

Having a presidential family member deeply involved in policy is not remotely unprecedented. Wives from Edith Wilson (who according to some historians served as de facto president during her husband’s lengthy illness) to Michelle Obama have advised their husbands on policy or launched their own initiatives. Hillary Clinton had an office in the West Wing when her husband was president and, like Ivanka, met with foreign leaders.

Nor is Ivanka the first adult child of a president to wield influence. George W. Bush helped run his father’s 1988 presidential campaign and later played a key role in ousting his father’s chief of staff. David Frum, the conservative author who served a stint as a speechwriter in the younger Bush’s administration, once said Bush was “the only president with functional experience of being a White House staffer.”

There are a few things that set Ivanka apart. She will have a security clearance, which Hillary Clinton, for example, did not. Her husband, Jared Kushner, is also a senior (also unpaid) White House adviser, making them perhaps the most powerful husband and wife couple ever, in terms of advising a president. And Ivanka, unlike Hillary Clinton or Michelle Obama, owns a major business, which ethics experts say could raise potential conflicts of interest.