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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!
In other words, the majority of Congress has sided with the President against a minority of Congress in a common dispute between the Executive and Legislative branches that depends on the Legislative branch to enforce its preferences.
In other words, the President has lawfully acted with the ascent of Congress via an act of Congress wherein Congress gave the President pre-emptive permission to do so.
In other words, the Supreme Court of the United States has maintained pre-existing procedural barriers to attempts to stop lawful acts of a President complying with Congressional law.
In other words, the Biden administration did not pass the FY 2025 budget during a non-trifecta, the Democrats did and are exercising their Senate filibuster rights to block a budget that would easily pass absent their filibuster, and Trump and the Republicans are choosing to respect the budget filibuster rather than dismantle it as Democrats previously did the judicial filibuster during one of their trifectas.
In other words, the Democrats have declined to pay the troops via a number of what would be mutually acceptable ways, such as the sort of clean continuing resolution they have previously and repeatedly insisted on when denouncing the very sort of government shutdown they are pursuing, but have also declined to actually try and stop the R&D transfer or private donations to troops they refuse to allow to be paid by current majorities in Congress.
In other words, the Executive is following the law in not spending funds not approved by Congress, by using funds not forbidden by Congress.
In other words, the President applied a legal tariff, did not do an export tax, using trade authorities granted by Congress. Congress, in turn, has not passed a budget to incorporate this revenue, in part due to the President's party respecting the blocking action of the minority party who refuses to permit a budget to pass.
In other words, Congress established processes outside of its discretionary budget cycle to raise and spend money, which falls into its purview of power of the purse to permit discretionary actions within Congressionally-approved scopes, or even non-discretionary expenditures (such as entitlement spending).
In other words, even you are not claiming Trump is wrong on this, or attempting to point towards a law of Congress that specifies how tariff revenues are to be spent.
No. Actually, big no. Congressional inaction is not the same as congressional action. Votes are required for action to take place for a reason. A lack of official and formal votes cannot possibly be construed to actually be the will of Congress for what I hope should be obvious reasons. Congress' actions are affirmative only, by definition! A law or expression of will, once passed, should not and cannot be ignored. It must be actually repealed.
But at any rate this is moving the goalposts (freely forgiven because of OP's formulation of the question) because Trump has done more things against the explicit will of Congress and its explicitly granted power over spending than just the ICA episode. And before you point to the vague SC decision about it, this also didn't come even close to resolving the issue because it was loosely hand-woven over foreign-policy adjacent powers, which other illegal and unconstitutional acts do not concern.
This is a bit weird overall and I'm not sure what to think. Congressional spending is, admittedly, often done in an infuriating pretzel-like twisty manner and so things aren't super duper clear cut in all cases. It's not totally clear what, if anything, can or should be done in the face of genuine inaction. I do tend to think that eventually and generally, absent any and all budget, the government should fully and completely shut down even if this results in critical services going undone as a matter of law if Congress truly does nothing to apportion funds, though, and that the President can't stop it even if like, pragmatically he probably could do something.
Some kind of SC reform is needed but it may need to take full amendment form for the deeper reforms. I personally believe that bureaucratically at least the SC's processes are dysfunctional. Their current pattern of handling things via incomplete orders, shadow dockets, being overly pedantic about standing, etc etc is bad.
See above for my objection regarding lack of action not being at all equivalent to actual affirmative action by Congress. Most of your comments here are playing a political blame game, but that's not the question at hand here, it's more a general constitutional question, and so of only minimal relevance.
However. Admittedly it feels icky and gross and probably bad practice at a minimum to allow private donations to substantially prop up core government sovereign functions (and there is I believe a Constitutional argument that certain functions are not permitted to be fully privatized) but going further back in history I'm pretty sure similar-ish stuff has happened without too much fuss. In theory however the Appropriations Clause seems to suggest that there is some limit, though the contours are probably poorly understood on this issue. My opinion here also applies to the ballroom thing. (As as practical matter though, this is uncomfortably close to legalized bribery and so combined with a turbocharged presidential immunity, I find concerning, though I'm trying to keep things relatively nonpartisan on these questions)
I am not currently qualified to opine on if it's an illegal export tax. I will say this: Trump is stretching and pressing powers explicitly intended for emergency use into more "normal" tariffs. I think that's terrible precedent and likely illegal (but on normal, not constitutional, grounds - the distinction matters). To his credit, some of these tariffs seem to be directly connected to foreign policy and trade deals, so that offers him some leeway (i.e. they in many cases do not appear to be intended to be permanent policy). But that latter point is the rub, right? Trump is not allowed to set permanent tariffs. Whether Trump's actions constitute a violation of, say, the Nondelegation Doctrine I'm happy to leave to the courts. Yet again however it doesn't matter if Trump is more proximately responsible for raising the money... it's not his to spend!! Only Congress can, via official vote, decide where and when to spend the Government's money. Period. Trump does not get special benefit of the doubt here. He's got some minor latitude within existing structures and programs, but Presidents of both parties have been playing way too fast and loose with this. The government is NOT one enormous slush fund, nor could Congress make it perform that way even if they tried, they are not allowed.
Maybe the more informative question in all this is - how wide do you consider the Nondelegation Doctrine? And what do you think the whole check/balance behind giving Congress explicit power of the purse and to tax is even for? Reading between the lines you don't seem to think it's all that important.
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