Edicts, Orders, and Laws

Unbalanced Power

It’s week three of the Administration of the 47^th President of the United States.  For both sides of the Great American Political Divide, the amount of “Executive” activity has been…dizzying, overwhelming, invigorating, terrifying, satisfying, and threatening.   The dust hasn’t settled.  But there does seems to be a slight delay in the juggernaut of executive action today.  The White House has agreed to limit access to the Treasury Department’s computerized spending programs.   The “boys” from DOGE, are now blocked from ravaging through that particular dataset.

It’s a moment where we can step back to look at what the authority of the “most powerful office in the world” really is.  

The Constitution of the United States carefully divided the powers of the Federal Government.   Many remember their Eighth Grade American History class, where the three branches were outlined:  legislative (Congress) wrote the laws; executive (President) enforced those laws, judicial (Federal Courts) interpreted both the laws and the Constitution itself.  My eighth grade teacher extolled the brilliance of “Madisonian Democracy”, the intricate intertwining of “checks and balances”.  No one branch could act without cooperation of the other, at least in principal.  And the Courts, thanks to John Marshall’s early assertions, became the impartial arbiter of power.

Mandate or Division

We are in a new era of American politics.   The people are divided, as Mr. Trump might say, “like never before” (well, there was that time around the Civil War).  But, by incredibly slim margins, the Government itself is of one mind.  Mr. Trump declares that his electoral comeback is an unfettered mandate for action, despite getting less than half of the Presidential votes.  The House of Representatives are Republican by three seats (out of 433).  The Senate is Republican by four seats (out of 100).  And the newly partisan Supreme Court also now has “a side”, six aligned with the Republican agenda, and three aligned with the Democratic side.

MAGA-Republican control of all three branches of Government has “greased the rails” for Mr. Trump, and he knows it.   He has the “carrot”; achieving the his MAGA goals.  And he has the “stick” of his MAGA base, willing to throw aside any Republican who might stand up against the onslaught.  Add to that, Trump also has the power; billions of dollars supplied by one of the richest men in the world, to back down any internal opposition.  

The stars are aligned to allow Trump to do almost anything.   What all of those Democrats warned about:  the authoritarian streak in the Trump ideology and the clear desire for vengeance against his enemies; is now apparent.  And the danger represented to world peace by a man who says; we’ll just take over the Gaza Strip ourselves, along with Greenland, Canada and the Panama Canal, is obvious.

Who Rules

So is Trump the nightmare Presidency, the end of the Republic, the beginning of a Fascist regime that everyone, from Joe Biden on down, warned about?   He might be.  And if he is, it’s because Congress and the Supreme Court determines not to defend their own Constitutional powers.

If Congress “makes the laws”, than a President cannot create a Department of the government without a “law” passed by Congress.   So what is DOGE, the “Department of Government Efficiency”.  For sure, currently, it is NOT a Department of the US Government.  I’m not even sure it can operate as an “arm” of the Office of Management and Budget.  But the President, and his Henchman-in-Chief, Elon Musk, simply have asserted authority.  And Congress is not standing against it (at least the majority of Congress, the Democratic minorities are screaming from the rooftops!).

The Trump Administration issued hundreds of executive orders.   Some of those are “just” edicts:  what the President would like to do, but doesn’t have the authority to do so.  Dissolving the Department of Education is one of those.  Sure, that’s been a Republican bug-a-boo for decades; but what Congress “giveth”, only Congress can “taketh away”.  So Trump’s order is nothing more than an announcement of his intent.  It’s Congress’s intent that makes the difference.

Another is the “birthright citizenship” edict, changing American Constitutional law of almost a century and a half.   The President doesn’t have the power to “interpret” the Constitution, at least he didn’t have it until now.  By the current “rules”, that’s not his call.  Will see what the Courts say to that.

Immunity

By the way, there’s a method to the madness of the flurry of paper orders coming from the White House.   The Supreme Court has charted a path.  The President is “immune” from criminal liability for anything within his “official duties”.  So, whatever is on an “executive order” is official.  You can hear the Trump lawyers brains clicking away – they’ve got a prima-facie case of immunity should he (or they) are ever be held accountable, again.

Can the Executive fire hundreds, maybe thousands of Federal employees?  The answer to that is  a no as well.   There are a series of laws, (passed by Congress), establishing a civil service outside of the political realm of White House control.  Trump alone cannot violate civil service, even if he writes an order, or even if he devolves the authority to fire to a subordinate, like Elon Musk and the “DOGE” boys.  And, by the way, they can’t offer a retirement buyout unilaterally either:

Federal employees beware.

Tradition

There is an ultimate “exception” to all of this.   While Congress may decide not to defend their own powers, the “last, best resort” are the Federal Courts.  And while there are plenty of Federal Judges at the District and Appellate levels who will rule against Trump’s usurpations, when it finally reach the Supreme Court the outcome might not be so obvious.  After all, six of the Justices granted Trump unprecedented immunity from prosecution.  Who knows how far they might be willing to let him go with his “executive actions”. 

First we depended on tradition, but this President didn’t respect tradition.   Then we depended on “norms”, but this one didn’t care about rules.  Then we depended on process, but Congress failed to check extreme Presidential actions.  Finally we depended on “the people”, but the people were “fooled again”.  Can we depend on the Supreme Court to maintain Madisonian Democracy?

And if the Court does restrain the President, can we expect Donald Trump to abide by their ruling?   Or will he echo his hero, Andrew Jackson.  When Jackson determined, on his own, to move the Native American tribes across the Mississippi River and into Oklahoma, the Supreme Court said no.  Jackson famously said:  “John Marshall made his decision, let him enforce it”, and continued the “Indian Removal”, including the Trail of Tears.  He ignored the Supreme Court.  Nothing happened to Jackson.  Would Trump be held accountable?

I’m not so sure.