Sitting Shiva
Ok, the ritual time of mourning must come to an end. Half of the Nation “sat shiva” for the election results. Now, like it, or more specifically, not like it, Donald Trump will be the President of the United States for the next four years. For many of us, there is a great concern about the survival of the American experiment in democracy. I know, those that voted for the new President will call that extremist. I only take him at his own words – words that we are told to ignore. But, like the old saying about “drunk truth”, I think Trump says what he thinks, believes, and wants.
There are things that a President can do, by himself, and those that he cannot. Set let’s look at what those areas are.
Congress and the Law
The President cannot change the law. That is a power of Congress. So if Congress passed a law creating the Department of Education, the President cannot, of himself, dismantle it. It takes a literal “act of Congress” to undo an “act of Congress”. On the other hand, the President can undo the executive actions of former Presidents. An example: Trump could end all of the actions Joe Biden took to reduce student loan debts. He could also decide to enforce the existing laws against illegal migrants. That’s why Biden tried so hard to get an immigration law passed by Congress.
And, for those local folks, the President cannot of himself repeal the “Chips Act”, that so impacts our economy here in Central Ohio. Even in a Republican controlled Congress, it’s hard to imagine that they will somehow revoke the “deal” with Intel, and stop the construction of the billion dollar chip production plant in New Albany. It was kind of a Republican thing anyway.
President Trump cannot by himself, end the Affordable Care Act, also known as Obamacare. Again, it’s a law. As John McCain made it clear the last time Trump was around, if the Congress won’t, he can’t. So we might not have to worry about the Republican “concepts” of what health insurance laws might be.
Recess Appointments
And while the President has the authority to appoint his own cabinet members, the Senate has the “check” (of checks and balances) of “advise and consent”. In short, the Senate must agree to his choices by a majority vote. So while Donald Trump can nominate anyone he wants, the Senate still must confirm by simple majority (appointments are not subject to the sixty-vote filibuster rule).
The Senate is narrowly divided between 52 Republicans and 48 Democrats, with a tie vote broken by the Vice President, soon to be Republican JD Vance. So it would take three Republican Senators to disagree with Trump’s pick to deny any appointment. Matt Gaetz for Attorney General, Robert Kennedy for Health and Human Services, and Pete Hegseth of Defense Secretary should make the Senate reconsider Trump’s choices.
If the Senate were to go into recess for ten days or more, the President “might” be able to appoint Cabinet members without consent. They could serve for as much as a year. In his past term as President, Trump took full advantage of recess appointments. In the last days of his Presidency, several cabinet level positions, including Secretary of Defense and the Attorney General were held by unconfirmed leaders.
But the Senate has the ultimate choice in this matter. If they remain in session, recess appointments are prevented. And the Senate can stay “open” even if most Senators are out of town, by having two members present, one to preside and one to call the Senate into session. So they will make the choice, not the President.
Executive Action
But, when Trump says he will round up and deport migrants who came into the United States illegally, he can. Congress could try to control that through laws and funding limitations, but I don’t expect they will. He can even nationalize the National Guard to help. But can he send in the United States military?
Let’s get into “the legal weeds” for just a moment. There are two conflicting laws at play in the use of Federal troops to enforce US law. The first is the Insurrection Act of 1807, which gives the President power to deploy US troops (at state request) to put down an insurrection. The second is the Posse Comitatus Act of 1878, which prohibits the use of Federal troops to enforce domestic law.
So if the illegal migrants pose a threat of “insurrection”, then the state governor (see Greg Abbott, the Governor of Texas) could request Federal troops. But without the threat of insurrection, then Posse Comitatus should apply. All of that sounds like a case for the Supreme Court.
With this Court, all outcomes are possible. The bad news here: I fully anticipate Americans to commit unforgiveable actions against migrants, illegal and legal, under the “color of law”, in the next four years. It’s perhaps the most heinous results of our fellow citizens’ choice of Donald Trump.
Commander-In-Chief
Where Trump actually has the most power is his authority as Commander-in-Chief. He absolutely CAN order the court martial of members of the military, essentially for any reason he chooses. The old legal saw that a prosecutor can use a grand jury to “indict a ham sandwich” is even more true in the military. But once the court martial is summoned, the Court itself determines whether the defendant is guilty or not. That is NOT the President’s decision. So the threat of court martial is real, just as any of us could be indicted on some charge. Whether that charge results in a conviction and penalty is completely different.
But the Commander-in-Chief can “fire” generals from their current posts, and appoint different ones. He can “stack” the current military commands with leaders of his liking. So don’t be surprised to hear that the Flynn brothers, retired Generals Mike and Charles, are returning to active service.
And the President has vast powers in executing the foreign policy of the United States. Whatever President Biden tried to achieve in the Middle East, Trump has publicly communicated to Netanyahu that he should do whatever he needs to “…to wrap this up”. And President Zelenskyy of Ukraine is well aware that while he had Biden’s support, that will wither under Trump. So he too has to look at a future with limited opportunities for victory.
Bobby Kennedy (the Senator, not the freak) used to quote an old Chinese curse: “May you live in interesting times. Like it or not, we live in interesting times.” When I was younger I struggled to understand why this was a curse.
Now, in the “New Age of Trump”, I get it.
