“Republicans on the Hill are also largely giving Musk and Trump the benefit of the doubt, dismissing criticism from Democrats that they are infringing on their congressional powers. Instead, they are leaning on comments from one of their former colleagues — Secretary of State Marco Rubio — instead of directly grappling with Musk’s actions.
Senate Majority Leader John Thune (R-S.D.), asked if Trump has the ability to close USAID unilaterally, said the administration’s goal is to ferret out waste.
“I think it’s a lot more about finding out how the dollars are being spent, where they are going and whether or not they’re consistent with this administration’s and our country’s priorities,” he said.
Sen. Chuck Grassley (R-Iowa), chair of the Judiciary Committee, said that it is a “constitutional question” when asked if Trump can end USAID without congressional approval.
“It’s how you define the executive powers of the president of the United States,” he said, “and I can’t define that for you.”
Career government officials, Democratic lawmakers and nongovernmental organizations have scrambled to shine a light on Musk’s efforts, many of which they’ve argued he doesn’t have the legal authority to carry out absent approval from Congress. Even some conservatives have raised concerns over Musk’s actions. So far, though, they have been vastly outpaced by Musk, who has taken to his social media platform X to build public support for shock-and-awe efforts.
Though Musk posted on X throughout the weekend that it was time for USAID to “die” and bragged that he was “feeding USAID into the wood chipper,” it wasn’t until Monday afternoon that Democratic lawmakers held a press conference in hopes of saving the agency.
Likewise, days after Musk’s allies gained access to the Treasury Department’s payments system, Senate Minority Leader Chuck Schumer (D-N.Y.) announced that he and House Minority Leader Hakeem Jeffries (D-N.Y.) would work on legislation stopping the “unlawful peddling.” Schumer said, “It’s like letting a tiger into a petting zoo and hoping for the best.””
“There’s a slight of hand when people declare the United States is a Christian nation. The nation was clearly founded on enlightenment principles that included freedom of religion and separation of church and state. These principles were put into the Constitution, and we know their meaning because we have the writings of the founders. At the same time, the country was a mostly Christian populace whose culture evolved from a Europe that had been Christian for many hundreds of years. Of course much of the ethos of such a society is going to be infused with Christian ideas, which themselves had been infused with Jewish, Roman, and Greek ideas. The country was and is majority Christian; in this sense it was a Christian nation. The country is and has always been heavily influenced by Christian culture, so also in that sense it is a Christian nation. But, at the nation’s founding, the founders explicitly created a government that was not supposed to implement Christianity upon its people, so in that sense it is not a Christian nation. As the country’s religious diversity grows, it becomes less of a Christian nation unless it can maintain some underlying Christian culture that goes beyond religious belief.”
“Check the U.S. Constitution, and you’ll see that Article 1, Section 8 clearly gives Congress sole authority over “Taxes, Duties, Imposts, and Excises.” Unfortunately, Congress traded away much of that power during the 20th century, beginning in the aftermath of the Great Depression—which was considerably worsened by a series of tariffs passed by Congress—and continuing with various laws passed in the 1960s and 1970s, as the Cato report details.
In theory, handing over those powers made sense. Lawmakers were more likely to be influenced by parochial interests and would favor protectionism that benefited some local industry, even if it came at the expense of the nation’s economy as a whole. Presidents, it was assumed, would take a more expansive view of the benefits of trade and would use those powers to reduce barriers like tariffs.
For a long time, that was true. It no longer is. Both Trump and President Joe Biden have favored protectionism, and have faced scant opposition from Congress or the courts.
If Trump returns to the White House in 2025, he would assume huge power over the flow of goods into the United States “without substantial procedural or institutional safeguards” due to the “broad and ambiguous language” included in many of those trade laws passed decades ago, Packard and Lincicome write.
The tariffs that Trump imposed during his term in office took advantage of many of those same powers.”
“The “historical tradition” test announced in Bruen has no real substance, cannot be applied consistently by lower court judges, and has led to absurd and immoral results. Just last June, for example, the Supreme Court had to intervene after an appeals court, in a perfectly honest application of the Bruen decision, ruled that people subject to domestic violence restraining orders have a constitutional right to own a gun.
But, while the Court’s decision in that case, United States v. Rahimi, reversed one of the federal judiciary’s most astonishing post-Bruen decisions, it left Bruen’s confounding historical test in place. Under Rahimi, “a court must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit” — whatever the hell that means.
In a separate concurring opinion in Rahimi, Justice Ketanji Brown Jackson quoted a dozen lower court opinions complaining that judges can’t figure out how Bruen is supposed to work. As one of those opinions stated, “courts, operating in good faith, are struggling at every stage of the Bruen inquiry. Those struggles encompass numerous, often dispositive, difficult questions.”
This chaos is likely to continue until Bruen is overruled. The history and tradition test announced in the case provides lower court judges with no meaningful guidance on which gun laws are constitutional. And Bruen allows judges who are determined to reach pro-gun conclusions no matter what the consequences to strike down virtually any gun law — which may explain Broomes’s decision in the Morgan case.”
“As a matter of statutory law, the case against Biden is straightforward. He has publicly admitted that he was regularly smoking crack cocaine around the time he bought the gun, and prosecutors say investigators found cocaine residue on the leather pouch in which he had kept it. As a matter of constitutional law, the viability of the case is less clear”
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“Judging from survey data on drug use and gun ownership, something like 20 million Americans are committing that felony right now. The Justice Department prosecutes only a minuscule percentage of those potential defendants. That is partly because such cases are not a high priority, which tells you something about the logic of treating this offense as a felony that is currently punishable by up to 15 years in prison (thanks to legislation that Biden’s father signed in 2022). But the main reason that gun-owning drug users are rarely prosecuted is that the government generally does not know who they are.
The Biden exception to that rule is the result of two factors. If he had not publicly disclosed his drug use or if Hallie Biden had not publicly revealed his gun possession, there would have been no basis to charge him. But even at that point, federal prosecutors did not have to pursue the case, let alone treat a single gun purchase as three felonies. Here is where Weiss’ eagerness to show that Biden would not get a pass simply because he is the president’s son may have played a role.”
“For well more than a century, the federal government has enjoyed near exclusive authority over immigration policy, while states have largely been restricted to assisting in carrying out federal policies. The Supreme Court has reinforced this rule many times over many decisions, such as Truax v. Raich (1915), which said that “the authority to control immigration — to admit or exclude aliens — is vested solely in the Federal Government.”
Texas, however, now wants the Supreme Court to abandon this longstanding constitutional rule, and it thinks that the political tumblers have finally aligned in a way that would lead the Court to do just that.
Texas seeks to upend the longstanding balance of power between the federal government and the states through a law, known as SB 4, which allows Texas state courts to issue deportation orders that will be carried out by Texas state officials. The law is now before the Supreme Court in two “shadow docket” cases, known as United States v. Texas and Las Americas Immigrant Advocacy v. McCraw.”
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“The reason why the federal government has historically had exclusive authority over nearly all questions of immigration policy is to prevent a single state’s mistreatment of a foreign national from damaging US relations with another nation. Indeed, Hines v. Davidowitz (1941) warned that “international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs” committed against foreign nationals.
Which isn’t to say that the United States must always treat foreign citizens with caution or deference — just that a decision that could endanger the entire nation’s relationship with a foreign state should be made by a government that represents the entire nation.”
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“the current Supreme Court has only a weak attachment to following precedent, especially when a precedent is widely disliked by modern-day Republicans. So there is at least some risk that the Court’s GOP-appointed majority will allow SB 4 to go into effect.”
“freedom of expression is crucial and central to the American project. It’s also not a force field by which people are shielded from other rules. If I want to get people’s attention by, say, driving 120 miles an hour while sporting a Palestinian flag, I cannot tell the officer who pulls me over for reckless driving that I’m simply exercising my free speech rights. The First Amendment does not give carte blanche to violate the law.”
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
Quite a mouthful, right? Let’s simplify. Here’s a streamlined version of the clause with only the most relevant parts highlighted:
“No person shall … hold any office, civil or military, under the United States, … who, having previously taken an oath, … as an officer of the United States, … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same …”
The justices are sure to delve into the precise meaning of those pivotal phrases. For example:
Was the Jan. 6, 2021, attack on the Capitol an “insurrection”? If not, the insurrection clause doesn’t apply.
Even if Jan. 6 was an insurrection, did Trump “engage” in it? If not, he is eligible to hold office again.
When Trump took his oath of office as president, did he take that oath as “officer of the United States”? If not, the disqualification provision does not apply to him.”
“The governors and Abbott claim that states have a “right of self-defense” under Article 4, Section 4 of the Constitution (which guarantees that the federal government will “protect each [state] against Invasion”) and Article 1, Section 10, Clause 3 (which allows states to “engage in War” if “actually invaded,” which Abbott says gives Texas the “constitutional authority to defend and protect itself”).
This argument misunderstands the long-established legal and practical definitions of an “invasion.” It also misconstrues the nature of unauthorized migration.
James Madison and other drafters of the Constitution, Abbott argued, “foresaw that States should not be left to the mercy of a lawless president who does nothing to stop external threats like cartels smuggling millions of illegal immigrants across the border.” But “those who cite Madison in support of equating immigration and invasion ignore the one time he directly addressed this very question,” writes the George Mason University law professor Ilya Somin at The Volokh Conspiracy, a group blog hosted by Reason. Madison did so in “the Report of 1800, which rebutted claims that the Alien Friends Act of 1798 (which gave the president broad power to expel non-citizens) was authorized by the Invasion Clause.”
“Invasion is an operation of war,” declared Madison. “To protect against invasion is an exercise of the power of war. A power therefore not incident to war, cannot be incident to a particular modification of war. And as the removal of alien friends has appeared to be no incident to a general state of war, it cannot be incident to a partial state, or a particular modification of war.”
“Every court that has reviewed the question” of what qualifies as an invasion has interpreted it as “an ‘armed hostility from another political entity,'” wrote the Cato Institute’s David J. Bier for Reason in 2021. In 1996, California made the same argument as Abbott, saying that the federal government had failed to protect it against an “invasion” of “illegal aliens.” But the U.S. Court of Appeals for the 9th Circuit rejected that: “Even if the issue were properly within the Court’s constitutional responsibility, there are no manageable standards to ascertain whether or when an influx of illegal immigrants should be said to constitute an invasion.” Besides, the 9th Circuit said, California ignored Madison’s conclusion in Federalist No. 43 that the Invasion Clause affords “protection in situations wherein a state is exposed to armed hostility from another political entity.”
This is where Abbott runs into another issue: Undocumented immigrants bear little resemblance to an invading foreign army. Despite the constant invocations of “military-age” men crossing the border (the fearmonger’s favorite way of saying “young men”), there has also been a historic influx of migrant families. Large groups of border crossers marching through the Sonoran Desert or trudging across the Rio Grande may make good footage for media outlets intent on fearmongering, but the overwhelming majority are coming here for economic or humanitarian reasons, not to commit crimes or sow chaos.”
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“By and large, people are happy to go through the legal immigration process if the steps are clear and accessible—but right now, they tend not to be. It’s up to Congress to pass immigration reforms that recognize these realities. Abbott’s misrepresentation of the Constitution does nothing to help.”