(This is the 3rd in a series of articles covering Donald Trump's efforts
to end liberal democracy in the United States and replace it with
authoritarian autocracy--a Trumptatorship--and the grim consequences of that. The 1st part is here, the second here.)
The
U.S. Constitution vests the federal government's legislative power,
including the power of the purse, in congress. The president's charge on this is that he "shall take Care that the Laws be faithfully executed." To change the constitution requires a constitutional amendment. All basic civics stuff, right? But since returning to the presidency in January, Donald Trump has asserted that he, in effect, has the power to unilaterally write and
rewrite, ignore and alter laws, override federal, state and local laws he doesn't like, including eliminating entire agencies of the government created by congress, and even to change the constitution itself, all with nothing more than the stroke of a pen. The powers of a dictator, entirely outside the constitutional ambit of a president, directed toward destroying both the substance and the institutions of the liberal democracy.
In 2023, Trump had asserted that "for 200 years under our system of government, it was undisputed that the President had the Constitutional power to stop unnecessary spending through what is known as Impoundment."[1] The constitution grants no such power to the president, nor, contrary to Trump's Uranian "history," have presidents ever held that as any "constitutional power." Over five decades ago, then-President Richard Nixon advanced that notion and got it in his head to carry out a raft of impoundment efforts aimed at thwarting the policy objectives of congress. This led to the creation of the Impoundment Control Act (the ICA), which established procedures by which a president could request that congress--the body with legislative power--delay or rescind congressionally-appropriated funds. This was uncontroversial at the time--the final vote in the House of Representatives was 401-6, the Senate passed it unanimously and Nixon, not long before he was forced from office by the Watergate scandal, signed it into law. Since then, presidents of both parties, including Trump in his first term, have made liberal use of these procedures, and no president until Trump has ever asserted any "constitutional power" to impound; the notion began with Nixon and very swiftly ended with him, with even Tricky Dick conceding the point. As the cherry on top, the U.S. Supreme Court then ruled, in a case preceding the ICA but decided shortly after it, that Nixon had no power to impound money legally appropriated by congress in the Clean Water Act. The ruling was unanimous.[2] Trump was, of course, impeached after trying to impound security assistance to Ukraine as part of a scheme to force the Ukrainian government to announce a baseless investigation of his political rival Joe Biden. Then, during the 2024 campaign, Trump described the ICA as a "disaster of a law" that "is clearly unconstitutional" and, perhaps most bizarrely, "a blatant violation of the separation of powers." Just words, unconnected to anything in the real world.[3]
I spend a whole paragraph and some footnotes on that matter only to reinforce a point I made in the previous article of this series, one that will recur throughout the ones to come. Trump's stated position on impoundment authority is, like his invocation of the Alien Enemies Act against a prison gang, baseless rubbish cobbled together to provide a "well, he has to call it something" pretext for a dictator to go around the constitution and the body of laws adopted under it to do things he wants to do but that the constitution and the law don't allow him to do. It isn't some alternative theory of How These Things Work. No aspect of it even attempts to be a serious analysis, even a bad one. It's offered as frivolously as the most vacuous social-media troll-post and Trump doesn't really care about any of it. Yet he's asserting impoundment "power" he doesn't have and using it, in utter violation of the law, to try to impose sweeping policy changes he can't get through constitutional means, including dismembering wide swathes of government institutions established by those means.
Some more basic civics stuff: The constitution (Article I, Section 4) provides that "the Times, Places and Manner of" holding federal elections "shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations..." Congress has directly set rules for federal elections or, in some cases, delegated the authority to independent agencies it has established for the purpose but most election regulation is done by the states. The president is given no power whatsoever to make laws or rules regarding federal elections, yet on 25 March, Trump issued an executive order that purports to usurp the power to do so from congress and the states in direct contravention of the constitution and regulate federal elections in a number of ways that violate a raft of laws established over the years by the bodies with the actual constitutional authority to make them.
Trump orders that federal voter registration forms created over 30 years ago by the National Voter Registration Act (NVRA) be changed to require onerous "documentary proof of United States citizenship" and require that "a State or local official [is] to record on the form the type of document that the applicant presented as documentary proof of United States citizenship," both directly violating provisions of the NVRA.[4] Trump purports to order the Election Assistance Commission (EAC) to "take appropriate action" within 30 days to "require" these changes and to "take all appropriate action to cease providing Federal funds to States that do not comply" with this rubbish--impoundment. But the EAC is an independent body created by congress as part of its constitutional duties to regulate elections; Trump has no more authority to direct it to do any of these things than he has to order someone to commit seppuku.[5] The federal funds the EAC provides to the states--for the maintenance of their election systems--are dispersed according to a formula established by law, not by the capricious edict of a dictator.
At present, 18 states accept mail-in votes that arrive shortly after election day as long as they were sent and postmarked before or on election day (state laws vary on this). The speed of the postal service is out of the voters' hands. Trump's order tries to impose an election-day deadline for receipt of such ballots. This is based on a very questionable interpretation of federal law, but based on that interpretation, not any clear directive, Trump is essentially trying to overturn laws in 18 states. He orders the Attorney General to take "all necessary action to enforce" this and pretends to order the EAC to "condition any available funding to a State on that State's compliance" with it. As before, he has no authority to either direct the EAC in this or to impound congressionally-allocated funds.
In the perhaps-naive belief that, with the civil society collapsing around their ears, the judicial branch will save America, voting-rights groups, civil rights groups, civil liberties groups and Democratic groups are suing the regime over all of this.
Some not-insignificant context here is that Trump's executive order came in the wake of the failure, last year, of the SAVE Act, an obnoxious piece of legislation created by corrupt MAGA congresscritter Chip Roy and endorsed by Trump, which contained versions of many of these same measures and would disenfranchise millions of Americans. Roy has reintroduced it in the current congress but it's unlikely to pass. With a legitimate path to creating such measures likely closed, Trump's EO seeks to will them into existence by dictatorial fiat.
What would a dictator be without a powerless minority to hate on and target, right? Only about 0.6% of Americans are transgender but Trump is marshaling the might of the U.S. government against them. He's already issued multiple quite ugly executive orders attacking transgender people and their rights--9 of them in his first 10 days in office alone, and he was just getting started. The toxic animus that gushes from them is appalling, mirroring Trump's vile anti-immigrant rhetoric from last year's campaign. One was directed, in part, toward what it called "restoring biological truth," adopting the language of outright Nazism. Among other things, it insisted that merely acknowledging the existence of trans people amounted to impermissible "gender ideology" and ordered his government to house trans women convicts in male prisons and deny them medical care. In another, targeting trans servicemembers, Trump, who, in his first term, pardoned and even promoted war criminals then fired the Secretary of the Navy for objecting, asserts that
"adoption of a gender identity inconsistent with an individual's sex conflicts with a soldier's commitment to an honorable, truthful, and disciplined lifestyle, even in one's personal life. A man's assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member."Another defines medical treatment for gender dysphoria for young people as "the chemical and surgical mutilation of children," even when they're 18, and orders that his regime cut off all research or educational grants to medical institutions that provide medical care for the purpose of gender transition. But those grants are federal laws, withholding or conditioning them in this way a violation of the law, and Trump is asserting the power to repeal or alter the law, something a president--the reader may tire of hearing me point out--has absolutely no constitutional authority to do.[6]
In February, another such order declared "it is the policy of the United States to rescind all funds from educational programs" that refuse to exclude trans women--maliciously misgendered in this order as in the others as "men"--from women's sports. At the Governors Working Session at the White House a few weeks after that one, Trump randomly picked a public fight with Maine Gov. Janet Mills, threatening to illegally cut off federal funds to her state if she didn't move to, in accordance with his executive order, ban the 2 trans girl athletes in 2 of the 126 high-schools in Maine from competing in women's sports. "We're going to follow the law sir," Mills retorted. "We'll see you in court."
Trump cites as his authority for this Title IX of the Education Amendments Act of 1972, which prohibits sex discrimination in educational programs that receive federal money, but, as ProPublica reported,
"Title IX has never required schools to exclude [trans athletes], and Trump's order can’t rewrite federal law, said Deborah Brake, a professor at University of Pittsburgh School of Law.
"'The president can put out an executive order saying anything he wants,' Brake said, but 'there has never been a court decision interpreting Title IX to require the exclusion of transgender girls from girls' sports.'"
From the Maine Morning Star:
"[Title IX] does not explicitly say anything about trans students and can't be applied to exclude trans athletes from sports, [Rachel] Perera [of the Brookings Institution] said.And at the other end, the Maine Human Rights Act prohibits discrimination against transgender people; the state would have to act in violation of its own laws to go along with Trump's legally-baseless EO.
"'So I think they're also out on a limb there, where they are interpreting the law in a way that doesn’t reflect the law, which gives Maine more opportunity to push back,' she said.
"Rewriting Title IX would need approval from Congress..."
The aftermath of Trump's effort to publicly bully Mills was extraordinary, a flurry of Trump regime agencies targeting Maine's educational institutions. The Department of Education's Office of Civil Rights (OCR) announced an investigation of one school district in the state,
"after it was reported that Greely High School, a school under its jurisdiction, is continuing to allow at least one male student to compete in girls' categories."Yes, those are their own words. This is happening even as Trump has ordered OCR to stop investigating the actual complaints about alleged race and sex-based discrimination that congress tasked it with fielding (and of which there is always a massive backlog). Trump's executive order directed federal agencies to "prioritize" these anti-trans actions. Whereas, the Maine Morning Star notes, "almost all OCR investigations were historically initiated due to complaints filed by agencies or individuals turning to the civil rights agency for help," under Trump, "those have taken a back seat and the office has pursued proactive 'directed investigations,' ordered by the administration." ProPublica reports that, starting only hours after the Trump/Mills dust-up, the first of what would eventually grow to six different Trump regime agencies came to target Maine, meaning that
"more federal agencies are pressing down on Maine than there are transgender girls competing in girls' sports in the state. Only two transgender girls are competing this school year, according to the Maine Principals' Association."It's also, of course, the case that these "investigations" are a sham--just another example of a dictator manufacturing a pretext for doing the dictator shit he wants to do. "Not ordinary," as ProPublica, with somewhat greater restraint than is merited, puts it. The Department of Health and Human Services, for example, doesn't really enforce civil rights laws in schools but at Trump's order, it launched an "investigation," and while such inquiries typically take "months, if not years," Trump's HHS decreed, after only one business day, that Maine was guilty of violating Title IX without having interviewed a single relevant official in the state. And so on. David Webber, a Maine civil rights attorney, pretty much hit the nail on the head when he dismissed these inquiries as "a show."
"'It's a political move dressed up, very barely, with a legal process, but it's a fake legal process. So it is very concerning because they're not even trying to make it look like it's due process,' he said."
Whatever one thinks about transgender athletes, this is the President of the United States not only insisting he has the power to, in effect, unilaterally rewrite federal law then use his rewrite to override a state's own (democratically-enacted) laws but fanatically weaponizing the entire federal government to try to dictate the policy of a pair of local high schools in one small state.
This is happening alongside Republican efforts in congress to amend Title IX in exactly the way Trump's EO pretends to do. The GOP bill narrowly passed the House in January but is unlikely to pass in the Senate, so Trump just issued an EO and pretends the whim of a dictator accomplished the same thing.
Trump
has been on a rampage through various agencies of the government on the
pretense of targeting "waste, fraud and
abuse." Trump's commitment to combating those things is rather jarringly belied by his illegal mass-firings, across the government, of inspectors general--the officials charged with investigating and putting a stop to those things at federal agencies--but, y'know, Trumptatorship.[7] Alongside disposing of the legally-designated cops on the WF&A beat, Trump willed into existence the "Department of Government
Efficiency" (DOGE), a sort of fake "agency" that, operating outside the bounds of the legitimate government, is allegedly supposed to root out these bugaboos. DOGE is
either led by billionaire Trump mega-donor Elon Musk or not, depending on what day--and
what court--is asking. That ambiguity is emblematic of everything about
DOGE, which many progressive commentators have correctly characterized
as a "coup." The "agency" wasn't created by congress but by another of
Trump's executive orders, and with
seemingly little or none of the vetting, background checks or adherence to conflict-of-interest rules
required of employees of actual government agencies, this fake "agency" has been allowed unprecedented access to real federal agencies, combing through, among other things, payment systems and all manner of sensitive government records
on Americans. The world of dire concerns this alone raises about things like privacy and information security becomes a galaxy of alarm in the face of the regime's insistence on resisting any real transparency regarding DOGE's activities. While Musk has said
DOGE is working inside nearly every federal agency, Trump has engaged
in a shell-game aimed at corruptly concealing most details about it and
its operations. ProPublica reports,
"Most of DOGE's money, records show, has come in the form of payments from other federal agencies made possible by a nearly century-old law called the Economy Act. To steer those funds to the new department, the Trump administration has treated DOGE as if it were a federal agency. And by dispatching members of its staff to other agencies and having those staffers issue edicts about policy and personnel, DOGE has also behaved as if it has agency-level authority.Musk's companies receive billions in government contracts, with no end to the potential conflicts of interest in his being involved in this, but--inspiring as much confidence as the rest of this enterprise--he's keeping his finances secret. While DOGE hasn't found any "waste" or "fraud" or "abuse," it has joined Trump in perpetuating a fraud on the public by copiously slapping those labels on federal spending--passed into law by the body constitutionally authorized to spend--that Trump dislikes and purporting to cancel it.[8]
"The use of the Economy Act would seem to subject DOGE to the same open-records laws that cover most federal agencies, such as the Environmental Protection Agency or the State Department. However, DOGE has refused to respond to Freedom of Information Act requests, saying it operates with executive privileges. Musk has also flip-flopped about whether DOGE's staff members are paid. Initially he said they were not, but earlier this week he said some of them were.
"The conflicting stances put the Trump administration in a bind, legal experts say. If DOGE is a federal agency, it can't shield its records from the public. If it's not an agency, then DOGE's tens of millions of dollars in funding weren't legally allocated and should be returned, some contend."
Trump has used DOGE as part of his effort to attack and dismember wide swathes of government institutions he has no authority to cut. While the record on this is far too extensive to even begin to properly cover here (I expect it will be a recurring subject as these articles proceed), Trump's efforts to destroy the Consumer Financial Protection Bureau (CFPB) are sort of a microcosm.
Created by congress in the wake of Big Finance crashing the economy in 2008, the CFPB is, simply stated, the anti-scam police, the federal agency charged with monitoring mega-sized financial institutions, enforcing consumer protection law, cracking down on fraudulent and abusive practices by finance. And, for Trump (and many in his party), that's the problem; the CFPB is a rare part of government that operates against the oligarchs and on behalf of the public. In a regime prioritizing what Public Citizen calls "'get out of jail free' cards" to corporate criminals, the CFPB was an obvious target.[9] Since opening for business in July 2011, the CFPB has returned to consumers over $20 billion extracted from them by inappropriate business practices by these institutions, at a cost of a fraction of that--a bargain, by any measure.
But under the Trumptatorship, black is white, up is down and we get Trump telling reporters at the White House that he aims to eliminate the agency that combats waste, fraud and abuse "because we're trying to get rid of waste, fraud and abuse."[10] Eric Petry and Ian Vandewalker of the Brennan Center For Justice get much closer to the actual "why" in noting
"Donors from the broader financial services industry, including hedge funds and investment banks, spent hundreds of millions of dollars supporting Trump's presidential bid, and some have now taken on prominent administration positions."One of those donors is Elon Musk, who owns multiple enterprises regulated by the CFPB. That, alone, makes any involvement by Musk corrupt and inappropriate but, of course, it's even worse, because isn't it always?[11] Petry/Vandewalker note that there have been hundreds of complaints lodged with the CFPB against one of Musk's businesses.[12]
Trump has no constitutional authority to terminate a federal agency created by law--in this case, created by congress as a delegation of its constitutionally-assigned power to regulate commerce (Article I, section 8)--but he was illegally and unconstitutionally proceeding to do so anyway. Trump fired CFPB director Rohit Chopra. By law, the deputy director of CFPB takes over the agency in the director's absence but Trump then appointed, as acting director, Russell Vought, his chief of the Office of Management and Budget (OMB). Trump claimed as his authority in this, the Federal Vacancies Reform Act, but that law allows for that kind of temporary replacement only if the official being replaced "dies, resigns, or is otherwise unable to perform the functions and duties of the office." Being fired by a dictator isn't on the list.
The illegally-appointed Vought then ordered the CFPB to halt all work on the duties assigned to the agency by congress, told its employees not to come in to the office, closed its headquarters in Washington D.C., took down its signage and informed the General Services Administration that the lease on the building will be terminated. Trump sent in DOGE, which deleted the CFPB's account on X, removed its homepage from the internet and began nosing around in its computer records. The CFPB is funded by the Federal Reserve; Vought informed the Fed that the CFPB wouldn't be taking any more money--defunding it. The agency's newer employees, subject to a 2-year probationary period, were all fired, 70 of them. By email. Vought canceled over $100 million in CFPB contracts, many of them critical to the CFPB's functioning. Through the looking-glass, this is how officials were trying to spin this:
"'Acting Director Vought is wasting no time getting to the bottom of the waste, fraud, and lavish spending at this rogue and weaponized agency and in bringing it to heel,' an OMB spokesperson said in a statement to Bloomberg Law. 'We are in the process of canceling hundreds of wasteful and unnecessary contracts worth over $100 million.'"
Vought then sought from the OMB--which he also runs--an exemption from a 90-day notice period required when a full-blown reduction in force is about to happen. On the chopping-block in this: over 1,000 CFPB employees--basically, the entire agency. Unsurprisingly, Vought granted himself his own request.
The National Treasury Employees Union, which represents, among others, CFPB employees, filed suit against the regime for all of this. Some of the regime's efforts to defend against the suit--by essentially blowing smoke up the judge's ass while continuing to attempt to dismantle the agency--were so outlandishly dishonest that they drew an extraordinary rebuke from DC District Court Judge Amy Berman Jackson, who wrote that they were "highly misleading, if not intentionally false," and "so disingenuous that the Court is left with little confidence that the defense can be trusted to tell the truth about anything." Jackson imposed a preliminary injunction against the regime's activities, documenting all of this in her order.
This same story has repeated itself dozens of times across a wide range of government agencies.[13] In an example that has gotten more attention than most, Trump has announced his intention to eliminate the Department of Education and signed another of his Orwellian executive orders to that end. Unusually, he's been qualifying this, sometimes saying he would need the approval of congress to accomplish it, but eliminating any government agency created by congress is something that, constitutionally, only congress can do. Trump has a congress controlled by his own party, but even with that, most of this--like most of the rest of what Trump has tried to do--would never get through the regular legislative process.[14] Trump's "solution": I am the law.
When not trying to outright eliminate them, Trump has also attacked agencies that congress established to have some degree of independence, trying to bring them under his own control. The Federal Trade Commission (FTC) is an example. The FTC is charged with, among other things, enforcing anti-trust law. It was established in 1914 and is composed of 5 commissioners who are appointed by the president, confirmed by the Senate and serve 7-year terms, with no more than 3 commissioners at a time to come from one party. By law, a commissioner can only be fired before his term has expired due to "inefficiency, neglect of duty, or malfeasance in office," but in March, Trump fired both current Democratic commissioners because, they were told, their service was "inconsistent with [the] administration’s priorities." Ninety years ago, Franklin Roosevelt tried to fire an FTC commissioner on those same grounds; the case went all the way to the Supreme Court, which, in Humphrey's Executor v. United States, unanimously shot down the firing. The commissioners fired by Trump are suing. NPR offers a list of members of various independent agencies like the FTC that Trump has no authority to fire but has purported to fire anyway. Several have challenged their firings and have been reinstated but legal action proceeds.
Trump has issued an executive order that, if carried through, would end the independence of regulatory agencies in an extraordinary centralization of power. Elie Mystal, in the Nation, writes that the EO requires that
"every single one of the agencies' regulations and proposals must be routed through the Office of Management and Budget. That may sound like a bunch of bureaucratic mumbo-jumbo, but what it means is that these independent agencies will no longer be 'independent.' It means that every single regulation in the country--from what disclosures have to be made to shareholders to how much broken glass is allowed to be in your childrens' toys--are subject to the whims of the president, and the president alone. No hearings, no panel of experts, no opportunity for public comment--it'll just be Donald Trump and a Sharpie..."With this, Trump, who has no constitutionally-granted legislative power, asserts the ability to wave his hand and grind to dust the enabling statues of all of these agencies, along with all of their subsequent statutory modifications. And, of course, the amount of despotic mischief enabled by what Trump is trying to impose is incalculable.
Besides being illegal in themselves, these actions against independent agencies come with another set of serious constitutional problems, because so many of these agencies tend to be a delegation of power that is held by congress. The FTC is an independent agency that carries out its duties under congress' constitutional authority to regulate commerce. If a president is just allowed to carry out a hostile takeover of it or other such agencies, rather than taking the matter to congress and getting the body to restructure it, he is taking over and assuming, without any delegation to him, powers reserved to congress and that a president doesn't have, and doing so contrary to the agreement between the legislative and executive branches about how those agencies are to operate and how they always have (for, in the case of the FTC, over a century).
Standing against this sort of thing certainly shouldn't be read as any sort of general defense of government institutions.; This writer doesn't have one of those in him. Our federal government--and, in fact, this can be said of all our layers of government--does many things that are stupid, inappropriate, wasteful, despicable, profoundly immoral. All of us can rattle off plenty of things the government does that we dislike. Some of us hate that it even exists. And our system for interacting with it is profoundly corrupt and dysfunctional too. We need something better--much, much better. But allowing Trump to destroy the liberal democracy, even the profoundly flawed version of liberal democracy with which we've long been saddled, is no pathway to anything better, and the dictator-led super-state with which he's trying to replace it is the worst of all species of government. Once all the checks and balances are gone, they're gone for good.
Trump has asserted the power to directly nullify provisions the constitution itself--a public official whose only powers, indeed, his office itself, come solely from that enabling instrument claiming he can, in effect, change that instrument on a whim, without ever bothering with the laborious process it establishes for enacting changes. On the first day of his new regime, Trump issued an executive order directing his administration to ignore and regard as invalid the birthright citizenship provision of the 14th Amendment, which established that anyone born in the United States is a U.S. citizen.
A brief history lesson: The U.S. inherited birthright citizenship from English common law. When it came to white guys, that was always the status quo, but in 1857, the Supreme Court issued the appalling Dred Scott v. Sandford decision, which concluded that Americans of African descent
"are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States."This is universally regarded as one of the worst decisions ever made by the U.S. Supreme Court. In the aftermath of the Civil War, the 14th Amendment was adopted, its first provision rejecting this and providing that
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."Pretty straightforward. If there was any doubt--and there wasn't, but that didn't prevent the government from grotesquely violating this provision at at times--it was settled in 1898, when the Supreme Court ruled, in U.S. v. Wong Kim Ark, that a Chinese man born to Chinese parents during a period in which they lived in San Francisco was, in fact, a U.S. citizen (he had been denied entry into the U.S. on the grounds that he wasn't).
Birthright citizenship has been a settled constitutional matter for 157 years, a settled matter for the Supreme Court for 127 and our vast body of relevant laws, stretching far beyond the lifespan of anyone living today, have been built around the concept, but so many years after we consigned the Dred Scott ruling to the landfill of history, the Trumptatorship has unearthed its substantive "reasoning" to try to assign a constitutional provision to that same plot of moldering earth.
Trump's EO says,
"[T]he Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not 'subject to the jurisdiction thereof.'"That's true, and the amendment's history also makes plain what this references: diplomats from foreign nations, who have diplomatic immunity, or members of an invading army occupying U.S. territory.[15] The Wong Kim Ark decision tracks these exceptions back deeply into the English law, noting that this wording excludes "the two classes of cases--children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state..." But Trump's EO proclaims that, "among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States" to undocumented immigrants, and he orders that "no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship" of those born to undocumented immigrants.
One can point out that this is a "reading" that is entirely alien to the entire history of the 14th Amendment. One could even cover that history. For example, Elizabeth Wydra, president of the Constitutional Accountability Center, gave a nice, compact recitation of it in which she noted that
"Perhaps the most remarkable feature of the legislative history of the Citizenship Clause is that both its proponents and opponents agreed that it recognizes and protects birthright citizenship for the children of aliens born on U.S. soil. The Reconstruction Congress did not debate the meaning of the Clause, but rather whether, based on their shared understanding of its meaning, the Clause embodied sound public policy..."And one can point out that Trump's "theory" here is one that was explicitly rejected by the Supreme Court (in Pyler v. Doe in 1982), and that it's yet another of those fringe crackpot notions on to which he's latched, this one from the disgraced John Eastman,[16] and that any scrutiny makes it crumble to dust as entirely as Count Orlock on a sunny beach.[17] Trump does not care.
What matters here isn't Trump's phony window-dressing rationales. What matters is what he's trying to sell with them. What matters is that Trump is charged to "take Care that the Laws be faithfully executed," yet is not only violating the law on a daily basis as a matter of policy but nearly everything he's done has directly violated the law. That's all he's doing. That's how he's ruling: the presidency as a criminal enterprise. What matters is that Trump raised his hand and swore to "preserve, protect and defend the Constitution of the United States" yet not only trespasses against it at every turn but has straight-up said he isn't bound by it and can, in effect, rewrite it at will when it suits him.
A "president" who can do these things--is allowed to do these things--can do anything, and he and his successors will do anything, every successful outrage precedent for the next. If he's determined to do them and there's nothing to stop him, then, practically, it matters not a whit that he has no authority to do them. So far, the courts have very often held the line, but that isn't likely to last. Experience dictates that the obscenity that is our present Supreme Court, the court of final appeal, will only continue the project it has had underway for years now, its majority hollowing out the constitution and acting as a steadfast, even enthusiastic patron of authoritarianism--a tag-team partner for the Trumptatorship. The congress, dominated by those committed--or at least supinely acquiescent--to the Maximal Leader have responded to the lower courts' defense of the law and the constitution by threatening to gut those courts' power. It's a very bad situation, a major crisis that has highlighted the extent to which so much of our government rests on a sort of gentleman's agreement and exposed what happens when that agreement is abandoned. Every president has, at times, violated the law, contravened the constitution and had to be put back in his place for it--that's the nature of this sort of power, and we've often done a very poor job of smacking it down--but the U.S. has never experienced anything like this, a dictator operating entirely outside the strictures of the constitutional system and, recognizing no limits that former system placed on his office, writing his own rules and using the power he gives himself to leave it in ruins. Unless this is stopped, the U.S. is never again going to see anything but this.
Americans, if you don't want that--and even if any of you think you do want it, you don't, I promise--you have to do something about it.
--j.
---
[1] That style is typical of the Trump gang's pronouncements when making so many of its outlandish claims--sounds confident, assertive, obvious but is, substantively, pure fringe-crackpot rubbish that isn't backed up by history, fact or law.
[2] The case was Train v. City of New York. Two decades later, the court took up Clinton v. City of New York (1996), a case that challenged a legislative line-item veto, which allowed the president to unilaterally rescind spending provisions already passed into law. This was basically the same power Trump is claiming but had more legitimacy, as it was at least passed by congress and signed into law by the president, but the court struck it down as unconstitutional too.
[3] I'd originally planned to go into the history of this matter in more detail but it's already been done for me. Trump's recent claim of a "constitutional power" to impound and the Bizarro "history" he references to support it come from legal memos prepared by Mark Paoletta, his Office of Management and Budget general counsel, and some colleagues. Last year, Zachary Price, a professor at UC Law San Francisco eviscerated it. In February, an NRP "Planet Money" article kicked it around again.
[4] Also undermining the entire point of the law, which was to provide a simple, straightforward and convenient means of registering to vote.
[5] The EAC was established nearly a quarter-century ago by the Help America Vote Act. It was established as an independent, bipartisan org. There are four commissioners, chosen by the President and the Democratic and Republican leaders in congress, no more than two commissioners can be of the same party and the vote of at least 3 are required for the commission to act.
[6] PFLAG and others filed suit against this executive order. They successfully argued for a temporary restraining order against enforcement of the EO by the Trump regime, then a preliminary injunction.
[7] Trump fired 17 IGs late on the first Friday night of his present regime--a move intended to minimize press coverage--and continued firing them in the weeks after. A president can legally fire IGs but the Inspector General Act of 1978 requires 30 days notice to congress prior to any firing and in 2022, in response to Trump's first-term antics with firing IGs who got in his way, the law was changed to require, in the words of American Oversight, that the notice to congress "also include a substantive explanation and case-specific reasons for the removal or transfer of an inspector general."
[8] Trump, of course, lies as easily as he breathes, and he and his underlings have accumulated an extraordinary rap-sheet of false claims regarding DOGE's work. In one infamous example, White House Press Secretary Karoline Leavitt--in her very first news briefing--claimed that
"DOGE and OMB [the Office of Management and Budget]... found that there was about to be 50 million taxpayer dollars that went out the door to fund condoms in Gaza. That is a preposterous waste of taxpayer money."Actually, that was a preposterous lie, and the next day, Trump escalated it, claiming his regime "identified and stopped $50 million being sent to Gaza to buy condoms for Hamas" [emphasis mine]. Trump was present when Musk admitted to reporters this wasn't accurate, but he then not only repeated it but opted to double the dollar-figure, insisting that $100 million in condoms had been intended for Hamas. A month later, he was still repeating this. For the record, the actual amount of dollars designated to condoms for Gaza or Hamas was $0.
[9] Trump is all about the oligarchs. In March, Public Citizen released a report detailing how Trump "is moving rapidly to halt and hinder federal investigations and cases against alleged corporate lawbreaking."
[10] Everything else Trump said about the CFPB in those comments was ludicrously false. Recalling his 2017 insistence that there were "very good people" taking part in a Nazi rally in Virginia, Trump said the CFPB
"was set up to destroy people. [Elizabeth Warren] used that as her little personal agency to go around and destroy people... That was set up to destroy some very good people, and, uh, and it worked--a lot of great people... If you looked at when she really ran it, wow, that was a vicious group of people. They really destroyed a lot of people."Elizabeth Warren originated the idea of the CFPB when she was a professor at Harvard Law but she never ran it in the way Trump described, because she never ran it at all. Warren helped establish the CFPB as a special advisor to then-President Obama. Obama briefly considered appointing her to run it but chose former Ohio Attorney General Richard Cordray as its first director instead. Speaking of the CFPB in the past tense, Trump said, of eliminating it, "We did the right thing. It was a very important thing to get rid of." The whole incident was reminiscent of the sort of rambling Joe Biden has done since 2019, where it sounds like he's talking about some movie, only marginally related to anything in the real world, that is playing out only in his head and trying to make policy based on it.
[11] Trump and DOGE have already attacked multiple government agencies and regulators investigating Musk's companies or taking or considering regulatory actions against them.
[12] Petry/Vandewalker point out that investigations of those complaints "will not proceed under the administration's order to stop all supervisory activities." The CFPB maintains all kinds of sensitive information on businesses, consumers, their own employees, files Musk's DOGE can peruse at their liesure. Hanna Hickman, a bureau attorney, tells CBS News that
"[Musk is] potentially able to gain access to files of his competitors like Venmo and Cash App. He is able to take out the regulator that would've been the watchdog for his company."[13] Among other things, the regime has carried out illegal mass-firings, aimed at crippling the ability of disapproved government agencies to function. To try to square this, legally, the Trump gang has claimed these employees are being given their walking-papers because of poor job performance, which, among other things, puts a black mark on the victims' employment records and prevents them from accessing unemployment, and, of course, it was a total lie, one that, once these actions resulted in numerous lawsuits, the regime then presented to courts, in the face of the entire documentary record.
[14] House Republicans are pushing a bill that would allow Trump to ignore the regular legislative process and would not only retroactively endorse his destruction of federal agencies but give him carte blanche to continue it, letting him submit a plan for "restructuring" government agencies and only requiring his proposals get a simple majority vote from congress. This is unlikely to go anywhere but it's another disturbing example of Republicans giving in to, instead of standing up against, a dictator. As I've said repeatedly, it's much worse if the rest of the state backs the dictator's play; at that point, all is lost.
[15] At the time, it also included American Indians, who were not U.S. citizens--a state of affairs that ended when citizenship was legally extended to Native Americans
[16] Eastman's highlights include this, his "argument" that Kamala Harris wasn't an American citizen because of it and wasn't eligible to be president and his notion that, after the 2020 election, Trump's then-Vice President Mike Pence could, in his ceremonial role overseeing certification of the electoral college results, just unilaterally throw out the electoral votes from multiple states. Eastman's license to practice law in his own state has been suspended and his state bar is undertaking disbarment proceedings against him.
[17] Three lawsuits challenging Trump's EO on birthright citizenship have already resulted in 3 court orders barring the Trump gang from proceeding with this while litigation is pending. The regime appealed all 3, and all 3 appeals courts upheld the orders. The administration is now trying to get the Supreme Court to throw them out but, as there's no disagreement among any of the courts involved, intervention would be extraordinary.
__________
UPDATE (15 April, 2025) - A would-be dictator running a gangster government entirely outside the bounds of the constitutional order certainly aren't going to tolerate any of the oversight baked into the system he's endeavoring to supplant. Trump has moved to quash any such oversight.
The firing of the inspectors general was part of this. IGs are federal officials charged with rooting out waste, fraud and abuse in the executive branch. Congress began creating IGs in the 1950s. Each oversees an agency or department of government. Those who oversee cabinet departments are nominated by the president and confirmed by the senate; those who oversee agencies below that level are chosen by the heads of the agencies. They're non-partisan posts--IGs serve through administrations of both parties and, being auditors, are supposed to have a degree of independence. Those very characteristics--non-partisan, anti-WF&A and independent--make them verboten to any would-be dictator. Verboten to Trump.
In March, the New York Times did a good, compact video on the fired IGs, people who have saved taxpayers billions. On 9 March, CBS News' 60 MINUTES produced a good segment, "Firing the Watchdogs," about how Trump is "casting aside those who might stand in his way," and talked to Paul Martin, who, before his firing, has been an IG over multiple government agencies over the run of 6 sequential presidential administrations. He was the IG for the U.S. Agency for International Development, which administers most civilian foreign aid and is one of many federal agencies Trump is illegally trying to eliminate.[1] Early on, the Trump gang froze foreign aid spending and put most of U.S. AIDs workforce on administrative leave. On 10 Feb., Martin issued an alert warning that, because of all of this, nearly half-a-billion dollars in intended food assistance to the developing world had been left in limbo, "at ports, in transit, and in warehouses at risk of spoilage, unanticipated storage needs, and diversion." Rather than immediately getting on this problem and trying to fix it, Trump just fired Martin. The next day.
Eight of the illegally-fired IGs eventually filed a lawsuit, demanding that the courts enforce the law--make Trump recognize that they hold the office or make him legally fire them.[2] A futile gesture, perhaps. In March, when it finally got to court, U.S. District Judge Ana Reyes said it would be difficult for the court to reinstate them, saying the best she could probably do was back-pay, but, she said, "I don't think anyone can contest that the removal of these people--the way that they were fired--was a violation of the law."
60 MINUTES also spotlighted Hampton Dellinger, who ran the Office of Special Counsel. The OSC is an independent agency established by congress where, among other things, federal employees can bring employment complaints--a big deal in a Trump regime that has been illegally mass-firing federal employees at every turn--and, perhaps most importantly, where whistleblowers can report wrongdoing within the executive branch and be protected from retaliation--a huge deal in a Trump regime operating as a gangster government. By federal law, the Special Counsel serves a 5-year term and "may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office." Trump didn't have any of those reasons; he fired Dellinger anyway.
Dellinger sued. The Trump regime's only real "argument" in its defense was that the law preventing Trump from firing the Special Counsel for no reason at all--which had been in place for nearly half a century--was unconstitutional, that the OSC exercised executive power that rightly belongs to the president. The court rejected this and gave Dellinger the win, noting that there is "no genuine dispute of fact that would preclude a finding that plaintiff’s removal" was a violation of federal law. The court found that
"the elimination of the restrictions on plaintiff's removal would be fatal to the defining and essential feature of the Office of Special Counsel as it was conceived by Congress and signed into law by the President: its independence. The Court concludes that they must stand.... [The Special Counsel's] independence is inextricably intertwined with the performance of his duties. The Special Counsel's job is to look into and expose unethical or unlawful practices directed at federal civil servants, and to help ensure that whistleblowers who disclose fraud, waste, and abuse on the part of government agencies can do so without suffering reprisals. It would be ironic, to say the least, and inimical to the ends furthered by the statute if the Special Counsel himself could be chilled in his work by fear of arbitrary or partisan removal."The court ordered Dellinger reinstated but in March, an appeals court allowed him to be fired again while the matter was adjudicated and, given the time and expense of further pursuing the case, Dellinger tapped out, setting the worst possible precedent.
---
[1] U.S. AID was initially established by then-president John F. Kennedy under authority granted him by the Foreign Assistance Act of 1961; it was later made a congressionally-established agency by the Foreign Affairs Reform and Restructuring Act. Rather than asking congress to abolish the agency--something even the current appalling congressional majority may not be predisposed to do--Trump, who has no authority to do any of this, simply ordered its work stopped, fired its workforce and had his Sec. of State Marco Rubio declare, in a dispatch apparently issued from the Twilight Zone, that "Thanks to President Trump, this misguided and fiscally irresponsible era is now over." The death of U.S. AID wouldn't be anything to mourn--it's an instrument of U.S. soft power around the world with an ugly history--but this isn't the way to engineer it.
[2] The plaintiffs' lawyer immediately got on the wrong side of the judge by waiting 3 weeks after the firings to film the suit, then filing it as an emergency motion, forcing the court to immediately consider it.
