“Jeffrey Goldberg, editor in chief of The Atlantic, reported on Monday that he had been added by National Security Adviser Mike Waltz to an encrypted Signal group chat with the White House’s principals committee to discuss U.S. war plans in Yemen. Goldberg received the first message at 11:44 a.m. on Saturday, March 15, and around two hours later, the White House announced a new air campaign against Houthi forces. The National Security Council confirmed the group chat was real and claimed Goldberg was added by accident.”
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“The constitutional and policy merits of war are two separate questions, but they’re impossible to fully disentangle. The point of asking Congress for a declaration of war is to allow the people’s representatives to weigh the pros and cons in a deliberate, transparent way. War is the most serious decision a government can make. Citizens of a republic should not have to perform Kremlinology—or wait for an official to fat-finger his contact list—to figure out what their leaders are planning.”
“There are many excellent reasons why Boasberg should not be impeached, including the fact that Boasberg’s judgment against Trump is both persuasive and well-grounded in the law. Trump may claim that he has the unilateral authority to deport alleged criminal aliens without due process. But the administration’s arguments in support of that sweeping claim fail to pass muster on multiple counts.
Under the Alien Enemies Act of 1798, “whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government,” the president may direct the “removal” of “all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized.”
Trump invoked that law in his March 15 proclamation ordering the “immediate apprehension, detention, and removal” of alleged members of the street gang Tren de Aragua, who are allegedly “conducting irregular warfare and undertaking hostile actions against the United States…in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela.”
Except there is no “declared war” between the United States and Venezuela. And while Trump and his allies have certainly promoted the idea of a rhetorical “invasion” of the U.S. by unlawfully present aliens, that is merely a talking point. Such rhetoric does not alter the plain text of the Alien Enemies Act, which refers to military invasions by a “foreign nation or government.” As James Madison explained in his “Report on the Alien and Sedition Acts,” published on January 7, 1800, “invasion is an operation of war.” The alleged crimes of the alleged members of a nonstate street gang do not magically become “an operation of war” just because the president says so in the hopes of unlocking extra powers.
Speaking of James Madison, he said that the role of the judiciary was to stand as “an impenetrable bulwark against every assumption of power in the legislative or executive.” That description is probably as good of an explanation as any for why Trump, just like Roosevelt before him, is so eager to stop the courts from doing their job.”
““We can simply choke off the money,” Trump said in a 2023 campaign video. “For 200 years under our system of government, it was undisputed that the president had the constitutional power to stop unnecessary spending.”
His plan, known as “impoundment,” threatens to provoke a major clash over the limits of the president’s control over the budget. The Constitution gives Congress the sole authority to appropriate the federal budget, while the role of the executive branch is to dole out the money effectively. But Trump and his advisers are asserting that a president can unilaterally ignore Congress’ spending decisions and “impound” funds if he opposes them or deems them wasteful.
Trump’s designs on the budget are part of his administration’s larger plan to consolidate as much power in the executive branch as possible.”
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“The prospect of Trump seizing vast control over federal spending is not merely about reducing the size of the federal government, a long-standing conservative goal. It is also fueling new fears about his promises of vengeance.”
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“Trump and his aides claim there is a long presidential history of impoundment dating back to Thomas Jefferson.
Most historical examples involve the military and cases where Congress had explicitly given presidents permission to use discretion, said Zachary Price, a professor at the University of California College of the Law, San Francisco. Jefferson, for example, decided not to spend money Congress had appropriated for gun boats — a decision the law, which appropriated money for “a number not exceeding fifteen gun boats” using “a sum not exceeding fifty thousand dollars,” authorized him to make.
President Richard Nixon took impoundment to a new extreme, wielding the concept to gut billions of dollars from programs he simply opposed, such as highway improvements, water treatment, drug rehabilitation and disaster relief for farmers. He faced overwhelming pushback both from Congress and in the courts. More than a half dozen federal judges and the Supreme Court ultimately ruled that the appropriations bills at issue did not give Nixon the flexibility to cut individual programs.
Vought and his allies argue the limits Congress placed in 1974 are unconstitutional, saying a clause in the Constitution obligating the president to “faithfully execute” the law also implies his power to forbid its enforcement. (Trump is fond of describing Article II, where this clause lives, as giving him “the right to do whatever I want as president.”)
The Supreme Court has never directly weighed in on whether impoundment is constitutional. But it threw water on that reasoning in an 1838 case, Kendall v. U.S., about a federal debt payment.
“To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible,” the justices wrote.”
“Trump doesn’t have to do something dramatic like cancel the election in order to erode democracy. The relationship between democracy and autocracy is a spectrum, not a binary; for example, countries like Venezuela, Nicaragua, Turkey and Hungary still hold elections, but their leaders aren’t held meaningfully accountable by them (or by other mechanisms like the courts). A more realistic concern is that the U.S. will slide into what political scientists call “competitive authoritarianism,” in which democratic institutions still exist but they are regularly abused. Maybe the chief executive can’t just abolish the other branches of government, the free press and other tools of accountability for fear of being seen as illegitimate, but he can find ways to weaken or circumvent them. And while the incumbent party still must face elections — and can even lose them — it makes every effort to tilt the electoral playing field in its favor.”
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“some of these things wouldn’t be new for Trump. During his first term, he fired FBI Director James Comey, who was leading an investigation into Trump’s ties to Russia. He purged the Republican Party of his critics by endorsing their opponents in primaries. And of course, he sowed distrust in the results of the 2020 election and attempted to overturn former President Joe Biden’s win. But that’s just the point: According to some political scientists, Trump’s actions during his first term already meet the definition of democratic erosion.”
“The lawsuit filed by USAID employees and contractors argued that Musk and DOGE are wielding power the Constitution reserves only for those who win elections or are confirmed by the Senate.”
“In the states’ case, filed in Baltimore’s federal court, the attorneys general argued that the administration had violated a 6-day notice requirement for so-called reductions in force – or RIFS – as well as other procedural steps for such mass terminations. The administration countered that no such notice was required for the layoffs, done quickly in early days of the administration, because federal law allows the government to terminate probationary employees under certain circumstances without any heads up.
Bredar on Thursday rejected the administration’s arguments that the terminations fit into a category not requiring notice because the employees were fired because of their substandard performance.
“Here, the terminated probationary employees were plainly not terminated for cause,” Bredar wrote in a 56-page opinion. “The sheer number of employees that were terminated in a matter of days belies any argument that these terminations were due to the employees’ individual unsatisfactory performance or conduct.””
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“The upshot of Bredar’s ruling, as he acknowledged at a hearing Tuesday, is that the administration would be allowed to lay off the employees en masse if it went through the proper RIF procedures, including the advance notice. His ruling also noted the administration is free to fire individualized employees without following the RIF rules if they are being fired for cause, “on the basis of good-faith individualized determinations.””
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“The Trump administration has been targeting probationary workers because they have fewer job protections and can be dismissed more easily. Federal probationary employees have typically been in their positions for one year, but some jobs have two-year probationary periods. The employees may be new to the federal workforce, but they also could have been recently promoted or shifted to a different agency.”
“Chief Justice John Roberts on Wednesday night granted a respite to the Trump administration as it seeks to keep billions of dollars in foreign aid frozen, despite a judge’s order directing the administration to resume payments immediately.
Roberts’ intervention heads off the possibility of administration officials being held in contempt for failing to comply with the order from U.S. District Judge Amir Ali, who imposed a deadline of 11:59 p.m. Wednesday for the federal government to pay nearly $2 billion in unpaid invoices from foreign-aid contractors.”
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“Ali, an appointee of former President Joe Biden, ordered the administration on Tuesday to pay the accumulated bills by the end of the day on Wednesday. The judge acted after finding that the Trump administration had essentially flouted earlier orders he issued requiring the State Department to lift a blanket freeze on overseas aid programs.
Rather than take steps to unfreeze that aid, as Ali had directed Feb. 13, the State Department and the U.S. Agency for International Development found new legal rationales to keep it on hold, the judge said.
As a result, Ali gave the administration the midnight Wednesday deadline to send the payments for what officials have estimated is $2 billion-worth of unpaid work completed by aid contractors.”
LC: Basically, the Trump administration flouted the courts, the law, and the separation of powers, and Roberts bailed them out rather than forcing the issue. Under Trump, the U.S. constitutional system is deeply degrading.
FBI second-in-command has said he doesn’t believe in the separation of powers and all that matters is power. If someone would have said that he’d be appointed second in command before it was done, he would be accused of Trump-derangement syndrome.
“the lawsuit argues — in often dramatic terms — that the Appointments Clause of the Constitution calls for someone with such significant and “expansive authority” as Musk to be formally nominated by the president and confirmed by the U.S. Senate.
“There is no greater threat to democracy than the accumulation of state power in the hands of a single, unelected individual,” says the lawsuit, filed by New Mexico Attorney General Raul Torrez and officials from Arizona, Michigan, Maryland, Minnesota, California, Nevada, Vermont, Connecticut, Rhode Island, Massachusetts, Oregon, Washington and Hawaii. “Although our constitutional system was designed to prevent the abuses of an 18th century monarch, the instruments of unchecked power are no less dangerous in the hands of a 21st century tech baron.” Two of the 14 states are led by Republican governors.”
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“The suit filed by the 14 states says the Constitution blocks the president from overriding “existing laws concerning the structure of the Executive Branch and federal spending.” As a result, the suit says, the commander-in-chief from is forbidden from creating — or even “extinguishing” — federal agencies, and from “slashing federal programs or offering lengthy severance packages as a means of radically winnowing the federal workforce,” in a nod to the Trump administration’s “deferred retirement” offer to government employees.”
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“”[T]he President does not have the constitutional authority to unilaterally dismantle the government. Nor could he delegate such expansive authority to an unelected, unconfirmed individual,” Thursday’s lawsuit says.”
“Vance’s most comprehensive statement of this radical position came in an interview I conducted with him in January 2023 for a profile in POLITICO Magazine. During the interview, I referred to comments that he had made on a conservative podcast in 2021 suggesting that Trump, if reelected, should “fire every single midlevel bureaucrat, [and] every civil servant in the administrative state … and when the courts stop you, stand before the country like Andrew Jackson did and say: ‘The chief justice has made his ruling. Now let him enforce it.’”
I asked Vance if this was still his view.
“Yup,” he responded.”
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“Vance’s rhetorical quibbling aside, his suggestion is radical. The course of action he is recommending — the president openly defying a Supreme Court order and then challenging the courts to enforce it — would amount to a full-fledged constitutional crisis of a different sort, one that would entirely upend the existing rules governing the separation of powers between the courts and the executive branch.”