{"id":94,"date":"2025-01-28T22:59:46","date_gmt":"2025-01-28T22:59:46","guid":{"rendered":"https:\/\/mytrumpdiary.com\/blog\/?p=94"},"modified":"2025-01-28T22:59:46","modified_gmt":"2025-01-28T22:59:46","slug":"trump-the-scofflaw","status":"publish","type":"post","link":"https:\/\/mytrumpdiary.com\/blog\/index.php\/2025\/01\/28\/trump-the-scofflaw\/","title":{"rendered":"Trump the Scofflaw"},"content":{"rendered":"

[et_pb_section fb_built=”1″ _builder_version=”4.20.0″ _module_preset=”default” global_colors_info=”{}”][et_pb_row _builder_version=”4.20.0″ _module_preset=”default” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”4.20.0″ _module_preset=”default” global_colors_info=”{}”][et_pb_text _builder_version=”4.27.4″ _module_preset=”default” custom_padding=”||3px|||” global_colors_info=”{}”]<\/p>\n

There is a great article about Trump’s first week in office and how he has tried to override laws by decree.\u00a0 The article is entitled Trump\u2019s Dictatorial Theory of Presidential Power \u2013 What the Executive Orders, in the Aggregate, Tell Us.\u00a0 <\/em>It was published today on the Just Security<\/em><\/a> website.\u00a0 Here are some highlights, but I recommend reading the entire article.<\/p>\n

The Apparent Strategy<\/h2>\n

Trump’s apparent strategy is to weakly justify his actions and then simply ignore or supercede the law.\u00a0 While this looks good from a PR perspective, it doesn’t really pass muster from a legal perspective, for many reasons.<\/p>\n

As Morrison says in the article,<\/p>\n

\n

The idea that the Constitution directly confers certain powers on the President is, by itself, neither new nor controversial. Yet in many of these orders, Trump is not simply asserting an inherent constitutional power to act. He is claiming a power to act in ways that clearly conflict with existing federal statutes. That is, he is asserting a constitutional prerogative to ignore, disregard, or even openly violate federal laws that are inconsistent with his policy agenda.<\/p>\n<\/blockquote>\n

He then goes on to use just a few of Trump’s executive orders as examples of this overreach.<\/p>\n

TikTok<\/h2>\n

In essence, Trump is claiming that the law can’t take effect right away because he hasn’t had a chance to review it.\u00a0 The law is current law, passed by both houses of congress and signed by the president (Biden).\u00a0 TikTok is now banned.\u00a0 He is not empowered to unilaterally change that.\u00a0 <\/p>\n

\n

Trump\u2019s TikTok Order flouts Senator Cotton\u2019s basic reminder that the law is the law. The Order is not merely a matter of exercising discretion about when to enforce a valid law. It is an attempt to suspend \u2014 even cancel \u2014 the law itself.<\/p>\n<\/blockquote>\n

The job of the executive branch is to carry out and administer the laws passed by congress, not to make its own laws.\u00a0 Remember that there are laws and there are regulations.\u00a0 Laws must be passed by congress.\u00a0 Regulations are used in the effort to carry out the law.\u00a0 Thus, Trump does have the power to change regulations as he sees fit so long as it is in a genuine effort to carry out the law.\u00a0 He can’t make regulations that violate the law, or just use orders to override laws.<\/p>\n

Birthright Citizenship<\/h2>\n

This effort has already run up against the courts and is, as of this writing, in temporary halt.\u00a0 As Cox and Morrison point out here:<\/p>\n

\n

When the president asserts authority to ignore a federal statute, they must make one of two arguments: they must argue that the statute was beyond Congress\u2019s constitutional authority to enact, or they must argue that the statute interferes with an inherent and exclusive power conferred by the Constitution on the president. Here, Trump does neither. At some level this is perhaps unsurprising, given that Article I of the Constitution explicitly gives Congress power to decide who becomes a citizen and, consequently, no one has ever argued that the president has inherent, exclusive authority to decide who should receive U.S. citizenship. That makes Trump\u2019s Order \u2013 and its implicit theory of presidential power \u2013 all the more stunning.<\/p>\n<\/blockquote>\n

Border Enforcement<\/h2>\n

Trump has a policy on the border, at least ostensibly.\u00a0 However, he is having a difficult time reconciling some of his views with the law.\u00a0 <\/p>\n

\n

Trump is not the first president whose policy aims do not align with existing law. What is<\/em> new is Trump\u2019s wide-ranging willingness to ignore the law when it does not suit him.<\/span><\/p>\n<\/blockquote>\n

Impoundment<\/h2>\n

Trump is using impoundment in many different areas, including foreign aid, grant programs of all kinds, including important government-funded research projects and money for the VA, to name a few.\u00a0 Impoundment is illegal and was the reason he was impeached during his first term.\u00a0 Once congress allocates money for a certain thing, it is, again, the executive’s job to make sure it is spent as intended.<\/p>\n

Trump’s tactic here is to declare emergencies, thinking that the emergency loopholes in the law give him powers that he would not otherwise have.\u00a0 Here is what Cox and Morrison say about that:<\/p>\n

\n

Fundamentally, many of Trump\u2019s executive actions seem to depend on an assertion of necessity, or even emergency. The timing of the TikTok ban \u201cinterferes\u201d with Trump\u2019s ability to analyze the issue himself and with his desire to negotiate a solution of his own, so it is necessary to suspend the application of the law to give him time to act. Even more explicitly, the unlawful flow of undocumented persons (and illegal drugs) across the southern border constitutes an \u201cinvasion\u201d\u00a0 that \u201ccreate[s] substantial risks to public safety and security,\u201d obliging the President to \u201cact with urgency and strength to end the threats posed by an unsecured border.\u201d<\/p>\n

These claims may be rhetorically powerful, but as legal arguments they are wholly inadequate. As Justice Jackson famously explained in Youngstown<\/em>, the framers of the Constitution \u201cknew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.\u201d To ensure that the Constitution\u2019s basic safeguards are not overridden by self-serving emergency declarations, the framers \u201cmade no express provision [in the Constitution] for exercise of extraordinary authority because of a crisis.\u201d Put another way, the President\u2019s inherent constitutional powers do not automatically expand just because he is prepared to declare an emergency, or a crisis, or a state of necessity.<\/span><\/p>\n<\/blockquote>\n

The Bottom Line<\/span><\/h2>\n

Some parting thoughts from Cox and Morrison are important here:<\/span><\/p>\n

\n

This all points back to the same fundamental principle: The President\u2019s lawful authority to act depends greatly on what Congress has done. If Trump believes that the current state of affairs constitutes an emergency of some kind, and if he means to invoke special authorities granted to him by Congress to address declared emergencies, that\u2019s one thing. But if he wants to use his sense of an emergency to contravene federal law, that is something else altogether \u2013 and altogether unconstitutional. A number of Trump\u2019s new executive actions seem not even to acknowledge the difference, let alone offer arguments justifying the latter<\/span><\/p>\n<\/blockquote>\n

and finally:<\/span><\/p>\n

\n

Ultimately, Trump\u2019s claims to a roving presidential prerogative to transcend the law have no place in our system of government. To the extent those claims are challenged in litigation, the courts should reject them. And more broadly, we should all be concerned that these executive actions may be the first steps in the direction of a dangerous version of extralegal presidential unilateralism.<\/span><\/p>\n<\/blockquote>\n

Again, please read the entire article using this link<\/a>.<\/span><\/p>\n

[\/et_pb_text][\/et_pb_column][\/et_pb_row][\/et_pb_section]<\/p>\n","protected":false},"excerpt":{"rendered":"

There is a great article about Trump’s first week in office and how he has tried to override laws by decree.\u00a0 The article is entitled Trump\u2019s Dictatorial Theory of Presidential Power \u2013 What the Executive Orders, in the Aggregate, Tell Us.\u00a0 It was published today on the Just Security website.\u00a0 Here are some highlights, but I recommend reading the entire article. The Apparent Strategy Trump’s apparent strategy is to weakly justify his actions and then simply ignore or supercede the law.\u00a0 While this looks good from a PR perspective, it doesn’t really pass muster from a legal perspective, for many reasons. As Morrison says in the article, The idea that the Constitution directly confers certain powers on the President is, by itself, neither new nor controversial. Yet in many of these orders, Trump is not simply asserting an inherent constitutional power to act. He is claiming a power to act in ways that clearly conflict with existing federal statutes. That is, he is asserting a constitutional prerogative to ignore, disregard, or even openly violate federal laws that are inconsistent with his policy agenda. He then goes on to use just a few of Trump’s executive orders as examples of this […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"on","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[4],"tags":[],"class_list":["post-94","post","type-post","status-publish","format-standard","hentry","category-commentary"],"_links":{"self":[{"href":"https:\/\/mytrumpdiary.com\/blog\/index.php\/wp-json\/wp\/v2\/posts\/94","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mytrumpdiary.com\/blog\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mytrumpdiary.com\/blog\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mytrumpdiary.com\/blog\/index.php\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/mytrumpdiary.com\/blog\/index.php\/wp-json\/wp\/v2\/comments?post=94"}],"version-history":[{"count":3,"href":"https:\/\/mytrumpdiary.com\/blog\/index.php\/wp-json\/wp\/v2\/posts\/94\/revisions"}],"predecessor-version":[{"id":98,"href":"https:\/\/mytrumpdiary.com\/blog\/index.php\/wp-json\/wp\/v2\/posts\/94\/revisions\/98"}],"wp:attachment":[{"href":"https:\/\/mytrumpdiary.com\/blog\/index.php\/wp-json\/wp\/v2\/media?parent=94"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mytrumpdiary.com\/blog\/index.php\/wp-json\/wp\/v2\/categories?post=94"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mytrumpdiary.com\/blog\/index.php\/wp-json\/wp\/v2\/tags?post=94"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}