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Notes -
"I am hereby cancelling all Executive Orders, and anything else that was not directly signed by Crooked Joe Biden, because the people who operated the Autopen did so illegally."
So this feels like a bit of an escalation to me. My attempt at an analysis, from someone who is not American:
Overall, I feel like this is kind of a misplay from Trump - I think that it guarantees that the next Democrat administration will do the same to his executive orders and pardons. I worry that this will lead to each administration basically cancelling everything that the previous one did, which I worry will lead to more power being entrenched in the permanent bureaucracy (as the administration's actions will all be seen to be impermanent, so the bureaucracy will just ignore orders they don't like). Some will argue that is the current state of affairs, and I don't necessarily disagree; the worry is that it would prevent another Trump-like figure from actually making changes.
I also think that this is one of those actions that does lend a bit of credence to the accusations that Trump is acting like a fascist. To be absolutely clear: I think there is no actual informational value in almost all accusations against Trump of any sort; I think that almost everyone who accuses him of anything has started from the position of "Trump bad" and used that to justify any and all accusations against him. That being said - this feels like the sort of action that will kick off another escalation cycle. One thing that I've noticed about a lot of US political escalations is that they often start with an action that is fully legal, but against form; the other party then does something that is mostly-legal, which the first party then uses to claim that the first party has completely abandoned the rule of law. I am right-wing biased (I lean libertarian, but that's a "more libertarian than we are now", as opposed to an "absolute libertarian") - but even with that, I can't think of an equivalent on the left to this.
So, for the American commentators - should I be concerned about this? Is this just Trump saying shit, is there a left wing equivalent I missed, is there some form of precedent that excuses it? Did I miss something major in my interpretation of it? Is this just not a big deal at all?
Cancelling executive orders are an escalation cycle, but not a very serious step. Biden entered office bulk-cancelling Trump's executive orders, and I would expect to see the same thing happen again the next time the White House changes hands regardless of Trump's actions here.
Pardons are more serious, if he tries to prosecute someone with a pardon, for behavior clearly covered by the pardon. The courts will, absolutely unsurprisingly, boot such an attempt very early in the process; there's zero votes to review the pardon power at SCOTUS, and not many in the 5th Circuit. That's a kinda bad, because there's some evidence available that people used the power of the pardon without Biden's direct acknowledgment and maybe without even having been delegated that power, and that can go into some really bad (and Nicholas Cage movie-) tier problems. But it's not really resolvable this way, and it'll encourage and invite new and innovative attempts in retribution that have courts willing to rubber-stamp wrong Blue-Tribe opinions on this matter.
If it's just making sounds that could cover that, but not acting on it, it's a step in the escalation spiral that was crossed over a decade ago.
Trying to argue that autopen'd signatures on full legislation is void would be a massive escalation. Not as big as I wish it was, since there's been a few other cases where Presidents stopped defending or enforcing laws that they didn't like, but still huge and with a wide variety of downstream effects, some of which would be so bad that I don't want to talk about them publicly.
There's been a pretty wide array of counterexamples. I'm a big fan of The Saga Of Defense Distributed, because it culminated in the courts specifically accepting the argument that a previous court-recognized settlement wasn't worth the toilet paper it was written on, but see for example Bank Pause Letters for a space where I don't have a lot of sympathy for the victims, or this mess for just a wide variety of examples.
Thank you for your response; if I understand it correctly, it basically is:
likelyalmost certainly strike it down; if they don't, super bad.Thank you for the examples; I was thinking too narrowly (I was thinking specifically of the presidential pardon power), but I agree that Defense Distributed is basically the same.
I'd also consider bringing prosecutions that would be incompatible with active executive orders, for acts committed while those executive orders were active, to be a bad escalation. Not an unprecedented one, but because such a modification doesn't count for ex post facto stuff a space that has a lot of There Be Dragons.
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