Breaking the Law
Michael Waldman, Brennan Center for Justice
We’ve been astonished and appalled by how the president and
the world’s richest man have assaulted so much of the government. It can be
hard to tell if this is a concerted attack on the rule of law or just a bunch
of people running around saying “what happens if I push this button?”
There is a bright thread running through, beyond bombast,
ego, and a desire to smash government, any government.
Over and over, their actions violate the law — either the
Constitution, or statutes, or both. Some moves may be designed to dare the
courts to sanction these power grabs. More likely, it seems increasingly clear,
they don’t care.
Take Elon Musk’s lightning war on the U.S. Agency for
International Development, the government’s principal body providing
humanitarian assistance around the world. USAID has always been a stellar
example of “soft power,” the reputational idea that the wealthy United States
can be a force for good in the poorest parts of the world.
Musk’s aides took over the agency. They froze most foreign aid, threatening the provision of medical care and the safe operation of refugee camps. They accessed its confidential data. They shut down its website. Staff was ordered to stay away from the office.
Musk announced their plan is to
“shut down” the agency. He says the agency is a “criminal
organization,” while President Trump now
claims it is led by “radical lunatics.” Finally, Secretary
of State Marco Rubio said the agency was guilty of “insubordination” and it
would now be part of the State Department.
All this is illegal. USAID was established
as an independent entity in a law passed by Congress in
1998. Congress could shut it down or move it, but a roving billionaire adviser
to the president cannot.
Why this particular agency? It’s actually cheap politics. Foreign aid is never popular. Even though it takes up less than 1 percent of the federal budget, citizens assume that it is about one-third of government spending, making it an easy target for demagogues.
Then there was the move to freeze all
federal grants and loans across the government, about $1 trillion worth. This
purported to stop “Marxist equity, transgenderism, and green new deal social
engineering policies” as well as other mythical creatures, but it would have
affected everything from education to health care. An uproar ensued, the
opposition party finally woke up, and judges began to rule. Trump backed down.
This too was a massive legal and constitutional breach.
Under the Constitution, Congress has “the power of the purse.” It appropriates
the money for the activities of the federal government. Presidents cannot just
decide to put an indefinite blanket freeze on spending or refuse to spend money
on this or that without involving Congress.
Presidents from both parties have at times refused to spend
funds, but Richard Nixon abused this power, as he did so many others on his way
to resignation. Congress passed the Impoundment
Control Act of 1974 to curb the practice. Under the law,
presidents must notify Capitol Hill of their intent to hold on to allocated
funds. Congress can accept or reject this proposal, and if it does not act
within a certain amount of time, the money must be released.
If presidents can decide when to spend and not spend all on
their own, then Congress becomes little more than an advisory body to a
monarch. Certainly that’s what the framers thought.
Over and over, in just two weeks in office, Trump has
flagrantly broken the law or violated the Constitution. The executive order
purporting to end birthright citizenship, which a federal judge said was “blatantly
unconstitutional” as he blocked it. The firing of fraud-finding
inspectors general across the government without providing notice or a
rationale to Congress. And more.
All this is happening while the new president is making
clear that the law will not be enforced when it comes to his own misconduct or
that of his supporters. The Inauguration Day pardon of the January 6
insurrectionists was followed by a purge of the Federal Bureau of
Investigation, with the top career officials removed and hundreds of agents now
being probed because they worked on the prosecution of the Capitol rioters. The
head of the New
York field office wrote to his staff, “Today, we find
ourselves in the middle of a battle of our own, as good people are being walked
out of the F.B.I. and others are being targeted because they did their jobs in
accordance with the law and F.B.I. policy,” and he vowed to “dig in.”
And let’s not forget the takeover of the Treasury
Department’s payment system by a squad of junior engineers working for Musk,
which could give him access to the most sensitive information held by the
government or be a tool for retribution, competitive advantage, or even just
the shutoff of payments, with catastrophic economic consequences.
Ignore the media headlines reporting that these moves “raise
questions” or “push the boundary.” It’s an Anti-constitutional lawbreaking
spree. Will that matter? Members of Congress from both parties should be
shouting objections. Trump’s fellow Republicans, so far, have utterly
abdicated. Federal courts have a duty to step up. Even this highly political
Supreme Court will rule against Trump on some things — but these justices have
repeatedly proven highly deferential to presidential power. (The ruling conferring vast immunity from criminal
prosecution for illegal acts if they can be couched as “official” is less than
a year old.)
Ultimately, public opinion will matter most.
Journalist Chris Hayes recently said that we are in a phase
between the lightning and the thunderclap. All this drama, tumult, and
illegality has erupted. The real-world consequences — swooning stock markets,
shuttered health clinics, and more — have yet to take hold. Perhaps the new
administration has made an indelible bad impression on those beyond its
loyalists. We will find out how many people truly care about the rule of law.
