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Notes -
On the sqs thread, @Capital_Room had an interesting query, about whether Trump is actually being authoritarian:
Is there anything to this: "The Coup We've Feared Has Already Happened"?
Is this what it seems like to me — just more lefty pearl-clutching and crying wolf — or is there something to the arguments James Bruno and Tonoccus McClain are making?
Some of the commenters like @MadMonzer offer an interesting response:
That substack is a bad take on it - the best version of the theory I have seen is spread across multiple posts on lawfaremedia.org. But the underlying story is absolutely serious, and as far as I can see it is true. The three-bullet version of the story is
The slightly longer version is:
The claim that Trump and Johnson are trying to change the US budget process to one where (at least as regards discretionary spending - the only changes to entitlement spending have been done in regular order through the OBBBA) Congress does not meaningfully exercise the power of the purse seems to me to be straightforwardly true.
Overall I tend to agree that Trump's admin is acting in authoritarian ways, and even moreso than past administrations. However, it seems to me that the Congressional structure is so broken that, it kind of makes sense?
The way I see it, and the way Trump et al probably sees it, is that the Three Branches as they exist are extremely dysfunctional, and cannot do the actual job of governing the country pretty much at all. This has allowed NGOs and other non-state actors to come in and basically take over by deploying social and cultural capital in key areas, craftily created a sort of secret network of influence, etc.
The only way for us to get out of this morass, the theory goes, is to have a strong executive who basically burns this gridlock down. Though I don't know if Trump's team would want to restore a functioning American government after or just keep an extremely strong executive.
Anyway, I can't say I fully agree with Trump's seeming plan to just destroy jurisprudence for the executive and do whatever he wants, but I admire the sheer boldness. OTOH, I'm also not convinced that the U.S. has more than a 2% chance of meaningfully falling into an authoritarian dictatorship under Trump, or even in the next 10-20 years. Hopefully I don't eat my words!
Define 'authoritarian'. Because Trump is ruling by decree outside of the normal separation of powers. Like that is literally what he's doing, yes Obama did some stuff along the same lines, but he didn't invent new taxes wholesale.
That being said, I don't really mind the rest of the constitution being treated like 'shall not be infringed'.
That was the exact issue that got Obamacare in front of the supreme Court. Individual mandate to buy insurance was a new type of tax or a very old one that hasn't been used in a while (a head tax).
It was passed by congress.
And? As you said Obama didn't create any brand new taxes, but he arguably did. And by arguably I don't just mean there is one loose interpretation where he might have done that. I mean it went before the supreme Court and it was a hotly contested issue by multiple states signing on to that case.
The point is that President Obama didn't create the new tax, Congress did.
There is an arguable case that Congress exceeded its authority under article 1 by regulating the absence of intrastate commerce, thereby usurping authority that properly belongs to the states.
There is a completely unarguable case that if Obama had enacted Obamacare by executive order, he would have been exceeding his article 2 authority, thereby usurping authority that properly belongs to Congress.
Trump imposing tariffs is arguably a case in the second category - the Trump tariffs are squarely within the article 1 authority of Congress, and uncontroversially illegal unless Trump is working within authority delegated by Congress. The tariff litigation has two strands:
I get that there is a legal difference, but the line is very thin when it is an Obama administration team proposing a massive bill to Congress and pushing it through so fast that barely anyone had time to read and understand it.
If Congress is going to rubber stamp anything the president puts in front of them (with maybe just a few pork barrel spending concessions added in) then it's not very different from going around Congress altogether.
I'm not saying this is ok. I'd prefer it if Congress would do their fucking job. But the imperial presidency has been a growing concern for decades at this point (or a even a century). I don't feel entirely comfortable blaming it on one party or even one particular president. If I had to I'd probably put the blame on 9/11 over reaction and George Bush. Obama was partly elected by people claiming he would reign in this sort of thing. Instead he just changed the flavor.
I just see this as less of a bright line has been crossed and more of a continuing escalation. I don't know where I'd put the bright line. If you'd asked me a century ago to place a bright line I'm sure FDR would have crossed it first. If you'd asked me anytime in the last three decades I'm sure that line would have been crossed about a decade later.
I don't think Congress rubberstamped Obamacare. There was a lot of negotiation between the White House, Pelosi's House leadership team, and the marginal senators who would be needed to get the thing through the Senate. The version of Obamacare that was rushed through without backbench House members having time to agree it was the result of that negotiation - it wasn't the administration's original draft.
That said, your basic point about the imperial Presidency stands. The non-US political science literature sees it as an inherent flaw of presidential democracy with strong political parties (and as something which has happened much faster in every presidential democracy, which isn't the US, usually ending in an autogolpe). In the here and now, the Trump budget shenanigans is a major escalation, and a particularly significant one because the budget is the main tool that a non-veto-proof Congressional majority has against a recalcitrant President.
I expect any attempt to discuss how bad the situation is is going to run into the ultimate scissor around the 2020 election and what it means for assessments of Trump's good intentions. "A president with a record of libertarian activism who stans Milei and poasts about the need to route around feckless Dems and Rinos is trying to partially usurp Congress's power of the purse in order to cut wasteful spending" is consistent with the long bipartisan history of drift towards an imperial presidency, including the general principle that each step on that road feels like a good idea at the time. "A president with a record of populist authoritarian activism who stans Putin, Orban and Bukele and poasts about his plans to attempt an autogolpe is trying to partially usurp Congress's power of the purse in order to defund his political opponents" stinks of burning Reichstag.
Who can forget the Lousiana Purchase and the Cornhusker Kickback?
Man, we used to have great names for these things. Now everything is just -gate. We used to be a country.
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It's not very different in result, it's entirely different if you're talking about subversion of the system.
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I think to hear the administration tell it, Congress has: there are various laws on the books (for decades, in most cases) that allow the president to set tariffs for "national security" (that has never been a loophole before /s), negotiating trade policy, against countries that discriminate against US trade, and for generic "emergency" purposes (also a common loophole).
I'm not going to completely side with the administration here, but I don't think the claim that Congress hasn't at least intended to grant the authority is questionable (and I'm not going to take a side on whether Congress should have done this here). The delegation questions are interesting, but I don't expect a massive judicial rollback of "emergency" powers as the most likely outcome: I think the idea of giving the president this authority wasn't really questioned, and previous presidents have used them without as much controversy.
I don't think Congress intended to delegate the power to raise tariffs on anyone, at any time, for any reason (including, for example, to punish a foreign politician for telling the truth about Ronald Reagan), which is the power that Donald Trump is claiming. (Trump's lawyers argue that both the President's determination that an emergency exists and the President's decision of who to tariff in response to the emergency are unreviewable by the courts, and can only be overturned by Congress with veto-proof majorities).
If Congress has wordcelled themselves into delegating a broad non-reviewable taxing power to the President, this doesn't change the fact that the Trump tariffs are still an unprecedented usurpation of the traditional taxing authority of the Congress, just one that is technically legal, in the same way that it is technically legal for the President to sell pardons under Trump vs United States. And INS vs Chadha (which invalidated the clause in IEEPA allowing Congress to cancel an emergency declaration by simple majorities) would turn out to have been a Dredd Scott tier mistake by SCOTUS.
Certainly it is not unprecedented; tariffs have been put in place by the executive before.
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Re MQD I wouldn’t phrase it that way. Instead, the rule is that Congress does not hide elephants in molehills. That is, there needs to be clear intent Congress was giving the president the power to do X; an open ended grant is generally not clear intent. ACB had a concurring opinion that explained it well.
I don't think we disagree. In the instant case the point is that if "imposing 3 trillion dollars in tariffs" is a major question and the MQD applies to the interpretation of IEEPA, then the power to "regulate trade" should not be interpreted as including the power to impose tariffs, whereas under ordinary canons of statutory interpretation it is a close call.
I wasn’t making a comment on the application; just the articulation.
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