If nothing else, the president is putting Democrats in the position of defending the indefensible.

P resident Trump took two executive actions on Monday.

First, as a general matter, he has issued an executive order undertaking to end — or at least deeply discourage states and municipalities from giving effect to — progressive “no cash bail” policies. These policies, often implemented by statute, prevent state judges from requiring people arrested for alleged crimes to post cash (or other financial security) in order to be released pending trial.

Second, and more narrowly, the president issued a second executive order that purports to end — or at least deeply discourage — the cashless bail policy in Washington, D.C.

Although the orders mirror each other in important ways, there are two of them because the federal government has more leeway in making and influencing policy for the District of Columbia, a federal territory, than for the states.

Last week, addressing Trump’s analogous, wayward effort to impose election procedures on the states — in particular, a ban on mail-in voting — I observed that, while the president’s policy preferences are often desirable, his intended implementation of them tends to be constitutionally infirm. So it is with cash bail, an appalling policy but one that sovereign states have the power to impose.

At the time the Constitution was adopted, there was not much federal law enforcement to speak of, and it was understood that domestic public welfare — very much including the making and enforcing of criminal laws — was the province of the states. Over two centuries later, the modern federal law enforcement system is vast and multilayered, and federal crimes are so numerous that (as Justice Neil Gorsuch and his coauthor, Janie Nitze, point out in Over Ruled: The Human Toll of Too Much Law), no one knows for sure how many federal criminal provisions there are (it appears to be over 300,000). Yet, law enforcement remains a core responsibility of the states, whose collective justice systems (including numbers of incarcerated people) dwarf the federal system.

Separation-of-powers principles, moreover, run not just horizontally (between the federal branches) but vertically (between the federal government and the states); the latter requires the federal government to defer to state sovereignty in areas of governance the Constitution reserves to local control. Because the federal government is one of limited powers (however unlikely that seems under statist administrations of both parties), the states retain the power to make and enforce their own laws — especially criminal laws — absent some recognized federal interest (e.g., interstate commerce and border security) that empowers Congress to enact preemptive legislation.

Cashless bail is a dangerously stupid policy. The president is right to argue that it results in the rapid release of recidivist offenders who often commit more crimes while they are awaiting trial on their previous crimes. Nevertheless, the state and municipal laws implementing cashless bail and other pro-criminal measures have been enacted by progressive Democrats who have been elected by the people living under these provisions.

Dangerous and stupid are not synonyms for unconstitutional. The federal government has no authority to require states to repeal these laws. What’s more, if we assumed for argument’s sake that the federal government did have such power, it would be Congress, not the president, that was authorized to wield it. The president has no lawmaking power other than what Congress delegates to the executive branch.

Now, because Washington, D.C., is federal territory, the federal government has more control over it than over other cities. But again, it’s Congress that has control. In most cities, the district U.S. attorney(s) enforce federal criminal law, while state law enforcement is done by state and municipal district attorneys (and some by the state’s attorney general). Washington, D.C., is unique in that it has one U.S. attorney’s office (now run by Trump appointee Jeannine Pirro), which is responsible for enforcing both federal criminal law (major interstate fraud, racketeering, and drug trafficking, terrorism, and so on) and what would be state law if D.C. were a state (murder, robbery, rape, muggings, etc.). Congress did permit the establishment of some local courts in D.C. (namely, the city’s Superior Court and Court of Appeals), but federal prosecutors bring the criminal cases.

There is a salient exception: Congress has provided for a locally elected D.C. attorney general, conceived to handle minor crimes, traffic violations, and consumer protection. Importantly, this portfolio also includes juvenile crime — which is a major problem in D.C. and includes some serious, violent offenses.

As a practical matter, the fact that a single federal prosecutor is responsible for most law enforcement in D.C. means the Justice Department has more leeway to indict in federal court many cases that, in the states, would usually be prosecuted in state court. Any federal prosecution is subject to federal bail law (see Section 3143 of Title 18, the federal criminal code), which liberally permits pretrial detention and the imposition of cash bail.

It is also worth noting that D.C.’s prohibition on cash bail is not as extreme as the bans in some jurisdictions. In D.C., while local judges may not impose a financial condition, they may detain a defendant pretrial if they find that no permissible conditions will reasonably assure the defendant’s appearance at future court proceedings or the public’s safety. By comparison, New York State’s lunatic criminal laws not only prohibit cash bail conditions but bar judges from ordering pretrial detention based on the danger a defendant poses to the community; detention may be ordered only for heinous crimes and only if the defendant poses a risk of flight.

Of course, as a practical matter, Washington is a progressive-Democratic bastion, and most arrestees are released from custody even if, in theory, judges could order them detained. That’s especially true of juvenile offenders.

The president knows he utterly lacks authority to outlaw cashless bail policies; he may also realize that even Congress lacks such authority when it comes to the states (though not D.C.). Consequently, while the president’s loose public rhetoric may suggest to voters that he is decreeing an end to cashless bail policies, a perusal of executive orders reveals that his strategy is to threaten the states and D.C. with a loss of federal funding if they fail to accede to his wishes.

This strategy is not going to get far in the courts.

To begin with, in the Obamacare cases — in particular, National Federation of Independent Business v. Sebelius (2012) — the Supreme Court invalidated the so-called Affordable Care Act’s Medicaid expansion provisions because Congress tried to extort the states — threatening to withhold Medicaid funding if they failed to expand coverage. The federal government may attach reasonable strings to funding (e.g., conditioning federal highway funds on adoption of a federal speed limit on some highways), but it may not induce compliance by unreasonable demands.

Hence, it is doubtful that even Congress could require the states to abandon cash bail. Enacting substantive and procedural criminal laws is a traditional state responsibility; it is hard to imagine a federal statutory attempt to overbear a state’s will in this regard that would not be unduly coercive, constitutionally speaking.

By contrast, the president lacks any power over federal funding of the states and D.C. unless Congress has delegated such authority to him. Congress has not empowered the president to withhold federal funding in order to encourage the abandonment of cashless bail. What’s more, federal funding of states and D.C. is akin to a contract: State and local governments make budgetary decisions in reliance on the promise of federal funding if they comply with certain conditions; the executive branch is responsible for paying out the funding, but it is not permitted to change the statutory conditions after the fact. That would require a new statute, spelling out the conditions.

Bottom line: It is doubtful that Congress could force states to foreswear cashless bail policies, and it is certain that the president has no such power. He would have to show that (a) Congress has given him this authority and (b) a federal override of state criminal procedural law is constitutional under federalist principles.

Mark me down as a skeptic that he could establish either, much less both. On the other hand, the president is putting Democrats in the position of defending the indefensible. It might be bad law, but it’s effective politics.