“just one of 34 currently active national emergencies—each coming with its own special powers that the president can use until he decides to stop. The longest-running was invoked by President Jimmy Carter in response to the Iran hostage crisis (which ended in 1981, though the “emergency” never did). Other emergencies authorized by Presidents Bill Clinton, George W. Bush, Barack Obama, and Donald Trump are still humming along too, many with no obvious end in sight.
Congress can respond to presidential emergency declarations by disapproving of them after the fact, which it occasionally does.”
“But doing so requires a supermajority of both chambers and, generally, Congress can’t be persuaded to get off its collective duff.”
“Under a bill the two senators reintroduced..all presidential emergency declarations would expire after 72 hours unless Congress votes to allow them to continue.”
“the bill is undermined by the fact that Paul and Wyden propose to exempt some presidential powers, such as those granted by the International Emergency Economic Powers Act (IEEPA), which allows presidents to impose sanctions on foreign officials and businesses deemed a threat to American national security. The powers granted by the IEEPA form the basis of many of the 34 ongoing national emergencies”
“The outgoing administration will continue to hold power within administrative agencies long after noon on January 20, 2021. Even worse: In many cases, these office-holders are, at least in theory, not subject to at-will removal by the president because federal law provides that they can be removed only for “good cause.” For example, members of the Federal Reserve Board, including newly appointed member Waller, enjoy this statutory protection from removal—with the right to seek judicial review of the legal sufficiency of the president’s reasons if he attempts to remove them from office. By confirming a slew of last-minute Trump appointments to key posts within the administrative bureaucracy, Trump’s imprint on the federal government could remain long after he and Melania have decamped from the White House.”
“Biden could adopt a theory advanced by conservative judges and legal academics, and long championed by The Federalist Society: The unitary executive theory. Under this theory, President Biden would be constitutionally empowered to remove executive-branch personnel who are opposed to his administration’s policies and programs whether or not they hold a fixed term of office or enjoy statutory good-cause protection against removal.
The Federalist Society, a conservative legal organization that has played an integral role in Trump’s judicial selection process, has long advocated the unitary executive theory. Under this theory, the president must be able to exercise direct forms of control over any and all officers holding policymaking posts within the federal executive branch—including, for example, a sitting member of the Federal Reserve Board of Governors.
Trump-appointed federal judges, such as Brett Kavanaugh and Neomi Rao, have written in both academic articles and judicial opinions about the central importance of the unitary executive theory to the proper enforcement of the separation of powers. Both have argued, strenuously, that the federal courts must interpret “good cause” removal protections very narrowly so that the president has the ability to fire subordinates within the executive branch in whom he lacks confidence.
Under this theory, it’s unthinkable that an entity charged with enforcing federal laws, such as the FCC, could be rendered largely unaccountable to the president.”
“Many of these nominees hold odd, even bizarre, policy positions that are clearly opposed to the Biden administration’s policies. Judy Shelton, for example, a Trump nominee to the Federal Reserve Board, has publicly advocated a return to the gold standard. If the Federal Reserve Board were to embrace her position, it would hobble the agency’s ability to use monetary policy to help limit the effect of shocks to the national and global financial systems. Shelton’s nomination currently remains pending before the Senate; despite failing to secure a majority vote last month (with two GOP senators absent due to Covid-19), Senator McConnell has preserved his ability to call up her nomination again before President-elect Biden is inaugurated.
If Republicans retain control of the Senate after the Georgia special elections, Biden should offer McConnell a choice: Either swiftly confirm a Biden appointee to the fifth seat on the FCC, or President Biden will remove Simington from the commission. Biden should adopt exactly the same negotiating tactic with respect to other federal independent agencies where the presence of lame-duck Trump holdovers, coupled with the Senate’s refusal to timely confirm the president’s nominees, would leave Biden without the ability to perform his constitutional duty to “take Care that the Laws be faithfully executed.”
Indeed, it may well be that the Biden administration’s only practical option to counter these unprecedented midnight appointments will be to fire these appointees after he takes office. And, when the newly unemployed federal officers seek judicial review of Biden’s action, the administration should quote the Federalist Society judges back to themselves in the legal briefs. In fact, were Biden to signal that he will remove illegitimate lame-duck appointees after taking office, it might persuade McConnell to cease and desist trying to saddle the Biden administration with a federal bureaucracy committed to seeing his administration fail.”
“Trying to booby-trap administrative agencies for an incoming administration is inconsistent with a meaningful commitment to the peaceful transfer of power.
To be sure, taking this step would constitute a further escalation of the confirmation wars and represent yet another step toward creating an imperial presidency. Firing a GOP member of the FCC would, like the Senate’s behavior, break an existing convention and also escalate of the battle between the Senate and the president, in periods of divided government, over control of independent regulatory agencies.
On the other hand, though, it was the Senate—not Biden—that started this fight.
Moreover, for independent regulatory bodies that feature multimember heads and partisan balance requirements for the membership, Biden simply has no effective workaround other than dismissing GOP members if the Senate will not consider his nominees with the same alacrity that they have considered Trump’s lame-duck picks. The Federal Vacancies Reform Act does not, for instance, permit a president to name “acting” voting members to independent agencies. Thus, for administrative bodies like the FCC, the Securities and Exchange Commission and the Equal Employment Opportunity Commission, which have partisan balance requirements and feature a multimember head, the only way for the president to establish control over the agency, if the Senate will not speedily consider and confirm his nominees, would be to remove opposition party members from it.
Further expanding the president’s unilateral authority is unfortunate collateral damage—but if a choice must be made between having an agency operating free and clear of meaningful presidential supervision and further accelerating the devolution of the separation of powers toward an imperial presidency, unaccountable government power in the hands of a rogue agency presents the greater of the two evils.
McConnell’s effort to do to federal agencies what he has systematically done to the federal courts can work only if Biden lets it work.”
“Education Secretary Betsy DeVos submitted her resignation Thursday, citing the president’s role in the riot on Capitol Hill.
“There is no mistaking the impact your rhetoric had on the situation, and it is the inflection point for me,” she wrote in a letter to President Trump. The behavior of the “violent protestors overrunning the U.S. Capitol” was “unconscionable,” she wrote.
“Impressionable children are watching all of this, and they are learning from us. I believe we each have a moral obligation to exercise good judgment and model the behavior we hope they would emulate,” she wrote. “They must know from us that America is greater than what transpired yesterday.”
She said her resignation is effective Friday. The resignation, she said was “in support of the oath I took to our Constitution, our people, and our freedoms.””
“There’s a reason we expect presidents of the United States to say that they support the peaceful transfer of power.
Donald Trump has never committed to it, and we saw the bitter fruit on Wednesday afternoon when, shockingly, pro-Trump rioters stormed the U.S. Capitol and disrupted the counting of electors.”
“The rioters themselves bear ultimate responsibility for their acts, but Trump egged them on.
He fed them poisonous lies about the election, including lunatic conspiracy theories worthy of QAnon that, if true, would justify violent revolution.
He encouraged them to come to Washington and said they wouldn’t stand for his “landslide” victory getting taken away.
He whipped them up on Wednesday with one of his typically high-octane speeches about how the election was stolen from them, and urged them to march on the Capitol to give “weak” Republicans the “pride and boldness they need to take back out country.”
When the mob overwhelmed security and made its way on the Senate and House floors, sending Vice President Pence and lawmakers fleeing, Trump tweeted about how he’d been wronged by Pence’s entirely correct view that he lacks the power as vice president to unilaterally declare him the victor.
It was only a couple of hours later that Trump released a pro forma video calling on his supporters to go home, but, of course, repeating all his same attacks on the integrity of American democracy that motivated the rioters in the first place.
Trump has been engaged in a grotesque, but utterly characteristic, display of failed leadership since he insisted late on election night that he’d won big.”
“I don’t entirely understand the polls-were-wrong storyline. This year was definitely a little weird, given that the vote share margins were often fairly far off from the polls (including in some high-profile examples such as Wisconsin and Florida). But at the same time, a high percentage of states (likely 48 out of 50) were “called” correctly, as was the overall Electoral College and popular vote winner (Biden). And that’s usually how polls are judged: Did they identify the right winner?”
“the margins by which the polls missed — underestimating President Trump by what will likely end up being 3 to 4 percentage points in national and swing state polls — is actually pretty normal by historical standards.”
“However, there are nevertheless reasons to be concerned about the polls going forward, especially if it’s hard to get a truly representative sample of people on the phone.”
“Voters and the media need to recalibrate their expectations around polls — not necessarily because anything’s changed, but because those expectations demanded an unrealistic level of precision — while simultaneously resisting the urge to “throw all the polls out.””
“While Congress or military leaders are involved in any other decision to use of military force, the president can legally order a nuclear strike on his own. “Congress doesn’t have any role in this at the moment,” says Alex Wellerstein, a historian of science at the Stevens Institute of Technology. “They’re not expected to be consulted.”
Unitary presidential control of nuclear weapons dates from the immediate aftermath of the Hiroshima and Nagasaki bombings, and the practice has been cemented over time. This is partly a product of the general shift toward a stronger executive, and partly just an issue of timing: If the missiles are coming, you can’t call up Congress.”
“”The system we have is very much a product of the 1940s, with some modifications in the 1950s and the 1960s,” Wellerstein says. “And we don’t live in the 1940s, ’50s, or ’60s. So I think we should feel free to question whether the system we have now is the ideal system for our present day.””
“Trump v. Vance, largely maintains the status quo. As Chief Justice John Roberts states in the first line of that opinion, “in our judicial system, ‘the public has a right to every man’s evidence,’” and “since the earliest days of the Republic, ‘every man’ has included the President of the United States.” Trump does not enjoy absolute immunity from a state prosecutor’s criminal investigation.”
“The upshot of Trump v. Mazars is that House investigators almost certainly will not see potentially damning records concerning Trump’s finances until after the November election. Mazars was also written by Roberts.
Though Mazars does not preclude the House from seeing those records eventually, by the time those records become available Trump will almost certainly either be an ex-president, or he will be firmly entrenched in his second term.
On the surface, it is easy to see Mazars as a defeat for Trump. The decision was 7-2, with all four of the Court’s liberals joining the majority. Justices Clarence Thomas and Samuel Alito both wrote dissents, where they complain that the majority didn’t do enough to protect Trump from investigation.
But make no mistake, Mazars is a victory for Trump because it holds that the president enjoys special immunity from congressional investigation enjoyed by no other citizen — and because it likely shields Trump’s records from the public eye until after the election.”
“Eastland held that Congress is entitled to gather information — and to use compulsory subpoenas to gather such information — whenever that subpoena is “intended to gather information about a subject on which legislation may be had.” So long as the congressional subpoenas sought information on a topic that could plausibly be subject to an act of Congress, those subpoenas were lawful.
The new rule announced in Mazars, however, can be boiled down into four words: “the president is special.”
According to Roberts, “congressional subpoenas for the President’s information unavoidably pit the political branches against one another.” He adds that “without limits on its subpoena powers, Congress could ‘exert an imperious controul’ [sic] over the Executive Branch and aggrandize itself at the President’s expense, just as the Framers feared.”
So Mazars invents new limits on congressional subpoenas targeting the president, and sends the case back down to a lower court to apply this new rule.”
“Linick isn’t the first inspector general Trump has lost confidence in recently. Since April, the president has fired two permanent IGs and replaced three acting inspectors general.
This has raised fears that the president — who has balked at pretty much any form of oversight during his tenure — is now targeting the watchdogs serving in his administration. Especially those who, in the course of doing their jobs, embarrass or implicate the president and his close associates in wrongdoing.
Trump does have the power to fire inspector generals, who, as executive branch appointees, serve at the pleasure of the president. But inspectors general are tasked with auditing and investigating that same executive branch — a job that could become increasingly challenging if these officials face retaliation for what they audit and investigate.
Congress and the American people rely on inspectors general, at least in part, to help the government run more efficiently and fairly. Inspectors general do not always succeed in this aim, but undermining the institution could be detrimental to oversight.”
“Congress purposely designed these roles to be slightly different from the average political appointee. “The original legislation built in a number of signals, if you will, that this person was supposed to be independent,” said Charles A. Johnson, professor emeritus of political science at Texas A&M University and co-author of US Inspectors General: Truth Tellers in Turbulent Times.
Inspectors general, Congress said, should be selected “without regard to political affiliation” and “solely on the basis of integrity and demonstrated ability” in fields like financial management, law, and public administration.
In 2008, Congress reformed the IG law, adding provisions that would, ideally, better protect the independence of inspectors general. The law formalized a Council of the Inspectors General for Integrity and Efficiency (CIGIE), an organization of all IGs that examines best practices and promotes professional development.
This reform law also included a provision that said a president must give Congress 30 days’ notice if he intended to dismiss an IG, and that the president must provide a reason to congressional leaders.”
“Trump has fired two confirmed inspectors general: Linick, as discussed above, and Michael Atkinson, who was the inspector general for the intelligence community. Trump has replaced or moved to replace three other acting inspectors general from their jobs; however, since they were serving in an acting capacity, the personnel shuffle could be done without notifying Congress.
Each of these dismissals — and particularly those of Linick and Atkinson — stunk of retaliation, as the IGs had recently taken actions or instigated investigations that embarrassed or had the potential to embarrass Trump or his political allies. That is, historically, precisely what Congress has wanted to avoid: the politicization of these watchdog roles.”
“Acting IGs often don’t have the authority or stature of Senate-confirmed officials, and that can diminish the credibility of IGs or their work, even though the acting IGs in question, like Fine, may have stellar credentials and deep experience working in the IG community.
So generally, relying on acting IGs isn’t ideal. But the problem with Trump’s reshuffle is that his comments and behavior don’t exactly indicate he’s eager for and interested in robust oversight. He’s accused long-serving IGs of being Obama administration holdovers, though they are career officials. (And, even during the Obama administration, their job was the same: to investigate.)
Trump has bristled at oversight throughout his presidency, seeing it not as an opportunity for reform but as a personal attack. And though Congress will ultimately vet his picks for the permanent roles, Trump has removed some of these qualified acting IGs and replaced them with hand-picked and unvetted successors in the interim.”
“Trump’s purge of inspectors general is dangerous because it threatens to undermine the independence of the office and politicize the institution.
That could have a chilling effect on the work of inspectors general. Inspectors general might become reluctant to initiate studies or audits, and agency heads may ignore findings of mismanagement or worse uncovered by IGs, Newcomer told me. “The agency head may feel like, ‘Oh, we don’t really need to worry about implementing these recommendations because, worse comes to worst, we’ll just have the IG fired,’” she said.”
“Sen. Chuck Grassley (R-IA) — who’s historically been a big advocate for IGs — wrote a letter to the White House asking for more information about why Atkinson and Linick were dismissed. The White House Counsel responded that, basically, Trump had lost confidence in the two officials and that it was his prerogative to fire them if he wished.
Grassley said Tuesday that the White House’s response was insufficient. “If the president has a good reason to remove an inspector general, just tell Congress what it is,” Grassley said. “Otherwise, the American people will be left speculating whether political or self interests are to blame. That’s not good for the presidency or government accountability.”
Grassley also objected to the placement of political appointees in acting roles, which raises concerns about conflicts of interest.
But Grassley’s objections might not matter. Congress does have some tools here: They could investigate, they could hold hearings. Democrats are doing that, but they will probably have much more weight and meaning if they’re bipartisan affairs. And so far, Trump’s Republican allies in Congress have been reluctant to push the president too hard. Expressions of concern have rarely motivated the president to change course.”
“the novel coronavirus came, and President Trump did nothing for week after week, month after month. We sit, still, in the void where a plan should be, forced to choose between endless lockdown and reckless reopening because the federal government has not charted a middle path. Instead, we wake to presidential tweets demanding the “liberation” of states, and laugh to keep from crying when the most powerful man in the world suggests we study the injection of disinfectants. Trump has let disaster metastasize into calamity. The feared collision of global crisis and presidential recklessness has come, and it is not close to over.”
“much of any presidency takes place in the murky realm of risk. Imagine that there are 10 horrible events that could befall the country in a president’s term, each with a 1 in 40 chance of happening. If a president acts in such a way that they all become much likelier — say, a 1 in 10 chance — he may never be blamed for it, because none of them may happen, or because the one that does falls during his successor’s term. But in taking calamity from reasonably unlikely to reasonably likely, he will have done the country terrible harm.
The logic works in reverse, too. A president who assiduously works to reduce risk may never be rewarded for their effort because the outcome will be a calamity that never occurred, a disaster we never felt. We punish only the most undeniable of failures and routinely miss the most profound successes.”
“Of late, I’ve been thinking back to 2017, when Trump began a war of tweets with North Korea, the world’s most irrational nuclear regime. “Just heard Foreign Minister of North Korea speak at U.N.,” Trump wrote. “If he echoes thoughts of Little Rocket Man, they won’t be around much longer!”
Trump’s behavior stunned even Republican allies. Sen. Bob Corker (R-TN), then the chair of the Foreign Relations Committee, warned that the president was treating his office like “a reality show” and setting the country “on the path to World War III.”
But World War III didn’t happen. Trump and Kim Jong Un deescalated. They met in person and sent each other what Trump later called “beautiful letters.” The fears of the moment dissolved. Those who warned of catastrophe were dismissed as alarmist. But were we alarmist? Or did Trump take the possibility of nuclear war from, say, 1 in 100 to 1 in 50?
Moments like this dot Trump’s presidency. His withdrawal from the Iran nuclear deal dissolved the only structure holding Iran back from the pursuit of nuclear weapons. What’s followed has been not just a rise in tensions but a rise in bloodshed, culminating with Trump’s decision to do what both President George W. Bush and President Barack Obama chose not to do and assassinate Iranian military leader Qassem Soleimani. The end of that story is as yet unwritten, but possibilities range from Trump’s gamble paying off to Iran triggering a nuclear arms race — and perhaps eventually nuclear war — in the Middle East.
Trump’s withdrawal from the Paris climate accord, alongside his routine dismissals of the NATO alliance, similarly force us to imagine the future probabilistically. In both cases, Trump says he is simply being a tough negotiator, forcing the better deals America deserves. In both cases, unimaginable calamity may — or may not — result. The verdict will not come by Election Day. We will have to judge the risks Trump has shunted onto future generations.
Of the many risks that Trump amplified through lack of preparation, reckless policymaking, or simple inattention, a pandemic is the one that came due while he was still president. But it is not the only one lurking, nor is it somehow a charm against other disasters befalling us. Moreover, the coronavirus itself raises the risk of geopolitical crises, of financial crises, of disasters both expected and unexpected, manifesting.
Trump, in his daily rhetoric and erratic mismanagement, is placing big, dangerous bets, but he will not cover the losses if they go wrong: It’s America, and perhaps the world, that will pay, in both lives and money.”
“Former New Jersey Gov. Chris Christie, who originally ran Trump’s transition team, relayed to Lewis a telling comment Trump made about the pre-administration planning, which he considered a waste of time. “Chris,” he said, “you and I are so smart that we can leave the victory party two hours early and do the transition ourselves.”
Each day, the president of the United States receives the President’s Daily Brief: a classified report prepared by US intelligence agencies warning of gathering threats around the globe. US intelligence agencies warned Trump of the dangers of the novel coronavirus in more than a dozen of these briefings in January and February. But Trump “routinely skips reading the PDB and has at times shown little patience for even the oral summary he takes two or three times per week,” reported the Post.
Two problems build amid this kind of executive impatience. First, the president is unaware of the nation’s constantly evolving risk structure. Second, the bureaucracy he, in theory, manages receives the constant message that the president doesn’t want to be bothered with bad news and does not value the parts of the government that produce it, nor the people who force him to face it.
It is, in fact, worse than that. “The way to keep your job is to out-loyal everyone else, which means you have to tolerate quackery,” Anthony Scaramucci, who served (very) briefly as White House head of communications, told the Financial Times. “You have to flatter him in public and flatter him in private. Above all, you must never make him feel ignorant.”
In March, speaking at the Centers for Disease Control and Prevention headquarters, Trump unintentionally revealed how much time his underlings spend praising him, and how fully he absorbs their compliments. “Every one of these doctors said, ‘How do you know so much about this?’” Trump boasted. “Maybe I have a natural ability. Maybe I should have done that instead of running for president.””
” “When the president stands on top of a table and says, ‘This is super important, super urgent, everyone must do this,’ the government works moderately effectively,” Ron Klain, who managed the Obama administration’s Ebola response, told me. “That’s the best case. When the president is standing up and saying, ‘I don’t want to hear about it, I don’t want to know about it, this doesn’t really exist,’ well, then you’re definitely not going to get effective work from the government.””
“we conflate the unlikely and the impossible. This pandemic, if nothing else, should shatter that conflation. It is hard to pretend the worst can’t happen when you haven’t been able to enter a store or see your parents for six weeks. And let’s be clear: coronavirus is not the worst that can happen. The H5N1 virus, for instance, has a mortality rate of 60 percent, and scientists have proven that it can mutate to become “as easily transmissible as the seasonal flu.”
Even scarier is the possibility of human-engineered pandemics. As bad as the coronavirus is, Bill Gates told me, “it’s not anywhere near bioterrorism — smallpox or another pathogen that was intentionally picked for a high fatality rate as well as delayed symptoms and a high infectious rate.”
We play for the highest of stakes. We must do what we can to improve our odds.”
“No one bears a heavier burden in that respect than the US president. But Trump is reckless with his charge. That reflects, perhaps, his own life experience. He has taken tremendous risks, and if they have led him to the edge of ignominy and bankruptcy, they have also led him to the presidency.
But he has always played with other people’s money and other people’s lives. “The president was probably in a position to make riskier decisions in life because he was fabulously rich from birth,” says Murphy. “But it’s also true he has had a reputation for risk not backed up by reality. His name is on properties he doesn’t own. We think of him as taking risk in professional life, but a lot of what he does is lend his name to buildings with risks taken by others. He’s built an image as a risk taker, but it’s not clear how much risk he’s taken.”
In electing him president, however, we have taken a tremendous risk, and it isn’t paying off.”