So, how does this work? The Supreme Court says (say) the SEC must do X,Y and Z but the president says the SEC is in the Executive Branch and only he can decide what is legal.
Having said that, what do we suppose will happen when Trump wants to do something and the Supreme Court says no? What method is Trump going to use to get around that roadblock? And how should the Supreme Court respond when their objection is noted and ignored? Trump doesn’t need to pass a law or issue a proclamation to declare himself above the law. He just claims he is saving the country therefore laws don’t count (but what he’s doing isn’t illegal anyhow and even if it was, it wouldn’t be illegal for Trump to do it because Trump is special).
Trump doesn’t need any kind of legislative fig leaf regardless. The Supreme Court voluntarily gave up their power to him when they ruled that everything he does in the course of his duties is immune from prosecution. There is no chance of them remembering how to restrict a President’s power until at least the next Democrat POTUS (if there should ever be another one).
That’s when you get a constitutional crisis. If the legislative branch doesn’t move to support the judiciary in that event, then you’ve crossed the line into tyranny.
It is worth noting that is exactly the fight the Trump White House has set up. They are not trying to avoid a constitutional crisis, they are aiming for it.
Yep, last time I ever comment on a link that I couldn’t be arsed to read first.
Sure, but this move to centralize interpretation in the White House is orthogonal to setting up a constitutional crisis. It is neither necessary nor sufficient to create such a crisis, though it will make much of the process easier.
Also, I did not say he had erased the Supreme Court. I said he had signed an Executive Order declaring it irrelevant. Which doesn’t mean it is - yet. But I firmly believe he wants it to be and is going to do everything he can to make that the case.
And now consider the fact that – so far, anyway – Congress has been entirely in Trump’s thrall. There is supposed to be a system of checks and balances, but ultimately it’s all based on traditional norms and the normative distribution of powers. Trump has been defying norms all his life and now he’s got that dialed up to 11. If he chooses to defy the Supreme Court and Congress it’s hard to see what the recourse can be. Impeachment by Congress? Aside from the fact that it won’t happen because too many of them are Trumpists, what if it did happen and he just ignored it? Then what?
If Trump is impeached (and removed, don’t forget that step) by Congress, the military (and, eventually, all the rest of the executive branch) will start taking orders from new President J.D. Vance, someone who is quite likely just as dangerous to American democracy but someone who also will have just seen what Congress can do to an overreaching executive.
Anything else would be a military coup.
I’m good with that.
Maybe. “Removal” is not a physical action, it’s a process written on a piece of paper. I can see Trump issuing yet another “executive order” saying that the process is invalid due to a current national emergency due to immigrants and fentanyl or some other shit he makes up. These are the crazy times we live in. Trump’s first term was quite surreal, but this is Alice in Wonderland stuff. Or perhaps more aptly, Orwellian stuff.
There’s not very much the Supreme Court can do, but if they at least do something by upholding lower court rulings there might be some hope. It at least visibly demonstrates the illegitimacy of this regime.
That’s not what the Executive Order says, or means.
Here’s the key pull-quote:
all executive departments and agencies, including so-called independent agencies, shall submit for review all proposed and final significant regulatory actions to the Office of Information and Regulatory Affairs (OIRA) within the Executive Office of the President before publication in the Federal Register.
The executive order refers to “‘so-called’ independent agencies”, which are set up by Congress to run with minimal Presidential oversight. All of these, with one exception*, are - according to this executive order - forbidden from creating new regulations.
Nothing to do with the Supreme Court, other than the fact that the Court will weigh in if one of the independent agencies obeys its congressional mandate and attempts to publish a new regulation, at which point SCOTUS weighs in on whether such an independent action is in fact valid and legal, according to the law as passed by Congress, or whether Congress exceeded its power by setting up those agencies as it did.
Again - this EO is not a good thing! But it doesn’t do what you’re saying it’s doing.
* The exception is the money-supply functions of the Federal Reserve, because even the idiots who go for the “unitary executive” doctrine know that markets will go crazy if they think Donald Trump can set interest rates and change the money supply by himself.
He’ll try to get congress to OK what he’s been doing illegally. And Trump’s people won’t generally wait for an adverse SCOTUS ruling. They are doing it now with the budget resolution.
Senate filibuster? That could be a problem for Trump. Maybe they will try for another carve-out.
What SCOTUS should do is rule that the phony emergencies Trump declared, so he can rule by decree, are invalid because they are for long-standing situations. I doubt SCOTUS has the guts or inclination to do that.
What makes Trump President? “Election” is not a physical action, it’s a process written on a piece of paper. Same deal.
If anyone takes Trump’s EOs seriously after he’s been removed from office, they’re violating the law along with him. But if Trump is really worried about impeachment/removal, I don’t think he’ll try to get the military on his side and against the law - more likely, he’ll summon another mob to sack the Capitol and destroy Congress before they can take that step. That would give the military the fig leaf it needs to keep obeying his orders.
It is absolutely a step on the path to consolidating power in the president.
It removes the legislative branch and judicial branch from a large part of US regulations. Those become 100% whatever the president says they are. Sure, the SCOTUS can still talk about free speech but the federal agencies are a huge part of what runs the government and Trump says he is the law when it comes to them.
I am not sure niggling about definitions is useful here. This is an overt power grab. What do you think will come next?
Don’t soft-peddle this. It is a serious problem. One that may take some time to be apparent but it will become apparent.
Agreed, except that the evidence of history is that the Senate 2/3 super majority cannot be achieved. If Trump got down to 25 percent polling approval, as Nixon did, this time might be different. But so long as half or more of the Republican primary voters want Trump to stay, he is golden. And so far, Trump’s polling numbers are good. It looks like median voters are OK with a strongman.
In the compendium of horrors, the removal supermajority requirement is on the list. It’s a fatal flaw in the Madisonian system.
I’m not soft-peddling anything, and I have pointed out that this is a power grab (though my first post did not fully emphasize its magnitude and direction; in my defense, I had not read the executive order).
Frankly, the Trump administration probably doesn’t want to provoke a constitutional crisis over this; they want SCOTUS to endorse unitary executive theory hook, line and sinker. I’m guessing there’s a regulation to make a test case out of already being finalized somewhere like the SEC so they can “defy” the president by publishing it and turning it into a case the SCOTUS majority will like.
David Remnick, the editor of the New Yorker, echoes my thoughts exactly:
In less than a month, Donald Trump has come through on his promise to exact retribution on his enemies and to set about overhauling the federal government. Whole agencies are potentially being tossed, to use Elon Musk’s heedless language, into “the wood chipper.” To understate matters radically, Trump has sparked many debates. One of them is how close is the United States to a constitutional crisis: Are we headed toward one, on the brink, or already there?
If there is going to be a concerted resistance to Trump’s blizzard of executive actions, it will likely play out largely in courts across the country and, ultimately, in the Supreme Court. And if the Administration spurns court orders, what happens next will conceivably determine the fate of democracy and the rule of law in our time.
ETA: That was the opening of a much longer article and associated podcast, here:
George and Lewis Carroll took massive doses of LSD, and collaborated to produce the craziest, most fascist “beyond the mirror” experience.
I would trust the White Queen more than I trust the Orange Pawn.
The responsibility to address this lies with Congress. Thus far they have been unwilling to do a damn thing.
Is there a bridge too far?
I’m not optimistic.