[ed. I'm as tired as anyone having to read about the daily disintegration of our country and various assaults on our Constitution, but when you have an obvious coup in progress everything else begins to seem trivial. The essay referenced below by Bob Bauer and Jack Goldsmith is particularly informative and definitely worth a read. Since Congressional Republicans have already surrendered their authority to stop this train wreck, it's left to the Supreme Court to stand as a last bastion of hope. But if they capitulate as well, or are just ignored outright then we truly are in a consitututional crisis. Then what?]
While many American presidents have tested the boundaries of their powers in discrete ways, few American presidents (outside the context of the Civil War or the world wars) have comprehensively pushed the exercise of their power to its absolute limit. The honor code has largely held.
Trump is different. His defiance lies in plain view. There is no dignity. There is no restraint. There is only power.
The founders knew that not every president would be George Washington, and they built in the ultimate check on presidential power: an independent branch of government that could override and even remove the president. (...)
There’s one last federal check remaining: judicial review. The doctrine is so important that one can think of the founding as unfolding in three distinct phases. First, we ratified the 1787 Constitution, which established a republican form of government. Next, we ratified the Bill of Rights, to create explicit protections for individual liberty.
Finally, the Supreme Court decided Marbury v. Madison and established the principle of judicial review, the power of the Supreme Court to definitively declare the meaning of the Constitution and nullify any law or official act that contradicts it.
In theory, that last guardrail still stands. But as Jack Goldsmith and Bob Bauer argue in a chilling new piece in their newsletter, Executive Functions, Trump may not be using his executive orders to manufacture a series of test cases designed to check the limits of his power; he may instead be “seeking to effectuate radical constitutional change.”
Goldsmith and Bauer argue specifically that the Trump administration may be attempting “to instill fear in the Supreme Court that the presidency is prepared to resort to outright defiance of its decisions.” (...)
As we watch unprecedented events unfold, it’s important to shift our political paradigm. I’ve been concerned for a long time that Trump and his MAGA movement have fully internalized the morality of the ends justifying the means.
That’s certainly still an element of Trumpism. It’s a universal temptation in politics and an almost omnipresent element of populism, but now I’m beginning to wonder whether the means are the ends. In other words, he’s not breaking the constitutional structure to achieve concrete policy goals; breaking the constitutional structure is the policy goal.
[ed. It's official. Russell Vought has now been confirmed as the new Director of the Office of Management and Budget.]
In May 2023, Vought complained at a talk at the pro-Trump think tank, the Center for Renewing America, that Trump’s policies in the first administration were thwarted because “the lawyers come in and say it’s not legal, you can’t do that, that would overturn this precedent, there’s a state law against that.”
by Bob Bauer and Jack Goldsmith, Executive Functions | Read more:
The founders knew that not every president would be George Washington, and they built in the ultimate check on presidential power: an independent branch of government that could override and even remove the president. (...)
There’s one last federal check remaining: judicial review. The doctrine is so important that one can think of the founding as unfolding in three distinct phases. First, we ratified the 1787 Constitution, which established a republican form of government. Next, we ratified the Bill of Rights, to create explicit protections for individual liberty.
Finally, the Supreme Court decided Marbury v. Madison and established the principle of judicial review, the power of the Supreme Court to definitively declare the meaning of the Constitution and nullify any law or official act that contradicts it.
In theory, that last guardrail still stands. But as Jack Goldsmith and Bob Bauer argue in a chilling new piece in their newsletter, Executive Functions, Trump may not be using his executive orders to manufacture a series of test cases designed to check the limits of his power; he may instead be “seeking to effectuate radical constitutional change.”
Goldsmith and Bauer argue specifically that the Trump administration may be attempting “to instill fear in the Supreme Court that the presidency is prepared to resort to outright defiance of its decisions.” (...)
As we watch unprecedented events unfold, it’s important to shift our political paradigm. I’ve been concerned for a long time that Trump and his MAGA movement have fully internalized the morality of the ends justifying the means.
That’s certainly still an element of Trumpism. It’s a universal temptation in politics and an almost omnipresent element of populism, but now I’m beginning to wonder whether the means are the ends. In other words, he’s not breaking the constitutional structure to achieve concrete policy goals; breaking the constitutional structure is the policy goal.
by David French, NY Times | Read more:
Image: Illustration by George Douglas; source photographs by Arthur S. Aubry and DNY59/Getty Images[ed. It's official. Russell Vought has now been confirmed as the new Director of the Office of Management and Budget.]
***
Why do so many of President Trump’s multitudinous executive orders fly in the face of extant legal principles? Are they the result of incompetence? Is the administration laying the groundwork for test cases in an effort to expand executive power in the Supreme Court?
Below we assess a third possibility: the administration doesn’t care about compliance with current law, might not care about what the Supreme Court thinks either, and is seeking to effectuate radical constitutional change.
The third possibility sounds histrionic, which is not our usual posture. But it appears to be the view of Trump’s nominee to head the Office of Management and Budget, Russell Vought, who is one of Trump’s “most influential advisers,” who will be voted on for confirmation in the Senate soon, and who will play a central role in Trump’s executive orders, if he hasn’t already.
Vought’s Views
The third possibility sounds histrionic, which is not our usual posture. But it appears to be the view of Trump’s nominee to head the Office of Management and Budget, Russell Vought, who is one of Trump’s “most influential advisers,” who will be voted on for confirmation in the Senate soon, and who will play a central role in Trump’s executive orders, if he hasn’t already.
Vought’s Views
Vought added that legal objections to presidential policies are where “so much of things break down in our country.” He provided a specific example: “a future president says, ‘What legal authorities do I need to shut down the riots,’ we want to be able to shut down the riots and not have the legal community . . . to come in and say ‘that’s an inappropriate use of what you’re trying to do.’” Vought added: “I don’t want President Trump having to lose a moment of time having fights in the Oval Office about whether something is legal . . . .”
We cannot know if, or the degree to which, Vought’s theory of governmental legal advice is guiding the Trump administration’s executive orders. Yet Vought’s theory fits many of the known facts. And the OMB, as we will explain below, has a vital role in executive orders.
We cannot know if, or the degree to which, Vought’s theory of governmental legal advice is guiding the Trump administration’s executive orders. Yet Vought’s theory fits many of the known facts. And the OMB, as we will explain below, has a vital role in executive orders.
by Bob Bauer and Jack Goldsmith, Executive Functions | Read more:
Image: Shealah Craighead
