IMPER PRES BAK

ESTB 12 25

aka unitary president: cf Angler on Cheney and neo-cons

NO MERRI

see scotus 4 immunity

SEE AUTHORITARIAN FASCISM

it's not just for neo-coms anymore: b/c of polarysis, BO had to sign exec orders on immigration etc

all have expanded oira?

SEE ORIGINALIST BS ~ INDEP AGY V SLAUGHTER

see Fed overreach BS bad faith

see pjt 2025 trumpista BS VOUGHT MUSK 6 DOGE COUP

see pjt 2025 doge coup cut usaid b/c gay opera? DOES NOT ALIGN WITH PRIORITES = XO? VOUGHT OMB SEE PUBLIC HEALTH

BAK 12 25

===

AN 8 26

Trump and his MAGA allies continue to push a far-right legal doctrine known as the "unitary executive theory," arguing that the U.S. Constitution grants presidents maximum executive power. But Harvard University legal scholar Noah Feldman, in an opinion column for Bloomberg News, counters that Trump and MAGA's "maximalist view" of presidential power is not only wrong — it is also a recipe for major corruption.

Feldman emphasizes that while presidents enjoy a certain amount of "executive privilege" under the U.S. Constitution, it is nowhere near as vast as MAGA Republicans are claiming.

"The Trump administration's latest assertions about executive privilege — that it protects the confidentiality of a president's communication with private advisers who aren't part of the government — are like too much else in this White House: politically unprecedented, legally wrong and morally dubious," Feldman writes in his Bloomberg column. "From a legal standpoint, the point of executive privilege is to protect communications that occur within the government, between the president and other public officials. Politically speaking, this is a naked attempt to protect the president from congressional investigation of potentially corrupt deals with his cronies, any of whom who could be called 'advisers' to avoid subpoena."

Never Trump conservative David French, in his New York Times columns and appearances on MS NOW (formerly MSNBC), has a lot to say about Trump and the unitary executive theory. Many Trump critics are complaining that Trump fails to recognize Congress as a "co-equal branch of government," but French goes a step further — arguing that the Constitution's system of checks and balances gives doesn't make Congress co-equal to the president, but gives the federal government's legislative branch even more power than its executive branch.

Feldman, in Bloomberg, urges Congress to fully exercise the legislative powers the Constitution grants them.

"If President Donald Trump invokes this executive privilege in future fights with Congress, as seems likely, the legislative branch cannot fold," the Harvard legal scholar stresses. "It must insist on its rights, bring the issue to court, and force the Supreme Court to reject the claim ... Historically, OLC (the U.S. Office of Office of Legal Counsel) has tended to adopt a maximalist position on presidential power ... But the doctrine of executive privilege has never been extended to conversations between the president and people who were not part of the government."

According to Feldman, Trump and his allies fail to understand "why executive privilege exists in the first place."

"The core idea is that the president should be able to get the advice he needs to run the government from the people who are best suited to provide it," Feldman notes. "Those people are government officials, who take an oath to uphold the Constitution and follow the laws. They are subject to all kinds of conflict-of-interest rules designed to make sure their advice is based on the national interest…. Donald Trump, the most corrupt president of the modern age, is asserting a broad new executive privilege designed to protect precisely corrupt cronyism. Neither Congress nor the courts can let that become the law."

-=-=

aha: is the root/basis for trump authoritarianism? salon 121 says yes

https://www.alternet.org/2020/05/is-bill-barr-concealing-trumps-grand-jury-testimony/

AN 7 26 TC

Donald Trump recently took to his Truth Social platform to celebrate a Supreme Court judgment. In response to the court’s decision in Trump v Slaughter on June 29, he posted: “90 years of precedent has been COMPLETELY AND UNEQUIVOCALLY OVERRULED, greatly increasing Presidential Power at a time when it is most needed!”

The US president is famously hyperbolic, but this time he did not exaggerate. His reading of US constitutional law was entirely correct. The court overruled its own precedent set in 1935 and held that the president had the power to fire federal trade commissioner Rebecca Slaughter “at will”.

Slaughter was one of two Democratic members of the commission sacked by Trump. The president invoked his powers under Article II of the constitution and said that their continued service was “inconsistent” with the “administration’s priorities”.

She sued Trump and other administration officials on the grounds that Congress, by statute, had said that a commissioner of the independent agency could only be fired “for cause”, meaning there had to be a proven reason to terminate her.

In 1935, in Humphrey’s Executor v United States, the court held 9-0 that then-president Franklin D. Roosevelt did not have the power to fire Federal Trade Commission (FTC) commissioner William Humphrey. Roosevelt had asked Humphrey to resign because he believed that his administration’s agenda for the FTC would be “most effectively carried out with personnel of my own selection”.

But when Congress established the FTC, it insulated the agency’s political independence by design. Commissioners could only be fired for “inefficiency, neglect of duty, or malfeasance in office”.

Overruling the precedent set by Humphrey’s Executor gives the president individual authority over great swaths of the administrative state. Since the FTC was established, Congress has created dozens of “independent agencies” operating under the same “for cause” rule to protect their independence.

The decision is a triumph for the US Supreme Court’s conservative supermajority of six justices. Their aim is to restructure the US government according to the “unitary executive” theory of the constitution. This theory holds that when the framers of the constitution “vested” the power of the executive in a president, they intended that the power and responsibility for executing the laws of the United States would ultimately be held by one man.

Under this theory, the president must be able to control the entire executive branch, including its independent agencies. Ironically, given the No Kings protests against Trump, the version of history promoted by this Supreme Court under the leadership of the chief justice John Roberts, maintains that the framers did this because only a single, all-powerful president could resist a return to a monarchy.

Trump posted: “The Republican Party was treated very fairly by the United States Supreme Court. Thank you for your attention to this matter!” Overruling Humphrey’s Executor was included in Project 2025, the blueprint drawn up by ultra-conservative thinktank the Heritage Foundation for Trump’s second term.

The conservative legal movement could be confident that this aim would be well received by the court. Roberts had championed the unitary executive agenda since his days in Ronald Reagan’s justice department in the 1980s.

Unprecedented power

Justice Sonia Sotomayor, joined by justices Kagan and Jackson, dissented from the Slaughter decision. She wrote in her dissenting opinion the court “gives the President a power unknown even to the English Crown against which the Founders revolted”. In the dissenters’ view, for at least the past 140 years Congress and the president, together, had set up independent agencies that did not rely “on who is disfavored or owed a favor by those in office”.

The US Supreme Court had approved “for cause” requirements in statutes as constitutional in 1935. But only now did the court decide that the president, congress and the court had all been “acting in open defiance of the Constitution all this time”.

Under the guise of upholding the principle of “separation of powers”, the court reinterpreted the constitution and shifted power away from Congress to the president.

Already in Trump’s second term, the court has given the president unprecedented power at the expense of Congress. Following on from its decisions on abortion and voting rights, the court has continued to overrule its own precedent and reinterpret the US constitution in line with the public policy objectives of the conservative legal movement.

In two years, Trump will be out of office and a Democrat might even replace him. But the court’s decisions will remain, and the only check on presidential power will be the president’s own morality and self-restraint. The Conversation

Andrea Loux Jarman, Senior Lecturer in Law, Bournemouth University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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AN 1 26

The federal government passed a whole raft of laws in the wake of the 1970s Watergate scandal, aimed at curbing the power of the presidency and imposing widespread ethical reforms, but according to a new analysis from the New York Times, since returning to the White House, Donald Trump has been systemically crushing these laws "as if in a shooting gallery."

The Watergate scandal began in 1972, when reporting uncovered efforts by President Richard Nixon to surveil his Democratic rivals by bugging their National Committee headquarters in Washington, D.C. The scandal bloomed ever bigger over the course of two years, with ever more "revelations of rot in the Nixon administration" coming to light, according to Times reporter Matthew Purdy, ultimately leading to Nixon's resignation in 1974 ahead of an impeachment inquiry.

Fearing that the affair had critically damaged the public's trust in its government, Congress undertook a massive reform campaign, passing a whole host of laws to rein in the presidency. According to Purdy's analysis, "a strain of conservative legal thinking has been aiming to reassert the president’s powers ever since they were curbed in the post-Watergate era," and in Trump's second term, it has found the most success, with the president systematically wrecking laws, norms and positions specifically created in response to Watergate.

"From the opening days of his second term, President Trump took aim at Watergate’s ethical checkpoints as if in a shooting gallery," Purdy wrote, first noting how Trump, "fired 17 inspectors general, a job established in the Watergate era to ferret out waste, fraud and abuse in government."

This move came as Trump and his newly created "DOGE" officeclaimed to be going after waste, fraud and abuse in the federal government.

The firings did not step there, Purdy continued.

"He also fired the head of the Office of Special Counsel, an independent agency created by legislation in 1978 to protect government whistle-blowers," he wrote. "Then he fired the director of the Office of Government Ethics, created around the same time to guard against financial conflicts of interest by top government officials. And he has used the Justice Department and the F.B.I. as political tools, roles they worked to shed after Watergate."

The "raw result" of this approach, despite the "high-minded Constitutional argument" Trump's legal aides put forward for it, has been to empower his use of the presidency to pursue his own personal whims and desires.

"He has removed barriers that might slow his pursuit of a highly personal presidency — punishing opponents and rewarding allies and financial backers while also reaping profits for family businesses that intersect with his powers as president," Purdy explained.

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an 12 25

Despite being given powers well beyond previous presidents, President Donald Trump has largely outsourced his duties to advisors who are actually running the White House's day-to-day operations, according to a recent analysis.

In a Wednesday op-ed for the New York Times, columnist Jamelle Bouie argued that Trump is mostly "uninterested in anyone except his most devoted fans, and would rather collect gifts from foreign businessmen than take the reins of his administration." Bouie pointed to White House chief of staff Susie Wiles' recent bombshell profile in Vanity Fair, in which she maintained that despite occupying America's highest office, Trump "doesn't know the details" of the "smallish agencies" that his administration decimated earlier this year.

"The president doesn’t know and never will," Wiles said.

Despite Trump being "practically AWOL," Bouie pointed out that he is president at a time when the Supreme Court of the United States (SCOTUS) has dramatically expanded the powers of the executive branch under the philosophy of "unitary executive theory." Under that system, Trump himself is vested with all the powers of the executive branch as outlined in Article II of the U.S. Constitution, which SCOTUS' conservative majority has clarified includes the ability to fire executive branch employees at will — even those at independent agencies.

However, Bouie asserted that the caveat of SCOTUS' new broad definitions of executive power is that Trump is mostly idle, "rarely meets with ordinary Americans" and "is shuttled from one Trump resort to another to play golf and hold court with donors, supporters and hangers-on." He added that SCOTUS' empowering of Trump to act beyond traditional checks and balances has, by default, meant that his cadre of advisors has free reign to run the White House as they see fit.

"[T]here is something ironic at work in this effort to concentrate executive power in the name of constitutional fidelity. It is being done on behalf of a president who is mostly missing from the business of government," Bouie wrote. "The unitary executive lacks an executive. And the president we have isn’t unitary. He has given his newfound power away to a small set of virtually unaccountable advisers, insulated from public outcry and indifferent to public opinion."

These advisors include Office of Management and Budget Director Russ Vought, who Bouie characterized as the "de facto shadow president for domestic affairs," and White House deputy chief of staff Stephen Miller, who the Times columnist called the "shadow president for internal security." Bouie noted that the work of foreign policy — which has always traditionally been seen solely as the president's wheelhouse — is largely being handled by Secretary of State and National Security Advisor Marco Rubio and Defense Secretary Pete Hegseth.

Bouie quoted former President John F. Kennedy, who wrote in the foreword of his advisor Ted Sorensen's 1963 book Decision Making in the White House that the “secret of the presidential enterprise is to be found in an examination of the way presidential choices are made."

"What do we make of a president who chooses not to make these choices?" Bouie wrote.

Click here to read Bouie's New York Times column in full (subscription required).

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AN 12 25

When the U.S. Supreme Court listened to oral arguments in Trump v. Slaughter on Monday, December 8, the three Democratic appointees — Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson — expressed strong misgivings about President Donald Trump's position in the case.

The "Slaughter" challenging Trump is Rebecca Slaughter, a former Federal Trade Commission (FTC) commissioner Trump fired. The former FTC official is arguing that presidents shouldn't be able to fire people from independent agencies established by Congress, as they play an important role in the United States' system of checks and balances. But Trump and his allies are invoking a far-right legal doctrine known as the Unitary Executive Theory and maintain that U.S. presidents have every right to fire people from independent agencies.

MS NOW's Lisa Rubin, offering legal analysis after the hearing, characterized Kagan's position as Trump trying to make an "enormous power grab with real consequences for our country." Georgetown University law professor Paul Butler, joining Rubin and host Ana Cabrera on the panel, agreed with Rubin's analysis but predicted that the High Court's GOP-appointed right-wing supermajority will "almost certainly" rule in Trump's favor.

The New Republic's Matt Ford is also confident that the justices will side with Trump. And in an article published on December 9, he warns that U.S. consumers will suffer for it.

"Precedent is on Slaughter's side," Ford argues. "In the 1935 case Humphrey’s Executor v. United States, the Supreme Court upheld the for-cause removal protections for FTC commissioners. The justices acknowledged that presidents could generally remove top federal officials at will, but argued that this power was more limited in the FTC context because agencies like it also exercised 'quasi-legislative' and 'quasi-judicial' powers. Congress has relied on that decision to structure much of the federal government over the past century."

Regardless, Ford doubts that the High Court's GOP appointees will agree with Rebecca Slaughter's arguments.

"Under the Constitution," Ford explains, "Congress has the power to regulate interstate commerce. To exercise these powers, lawmakers created a host of federal agencies over the years to enact regulations and enforce federal law. Some of these agencies, like the FDA (Food and Drug Administration) and the EPA (Environmental Protection Agency), are directly under the president's control because he can fire the officials who lead them. Other agencies are structured to be more independent. The Federal Trade Commission, the agency at issue in this case, enforces federal antitrust law and some consumer-protection laws, with a mandate to prevent fraudulent, anticompetitive, and deceptive business practices. To ensure that the FTC operated in the interests of good government, Congress placed it under the direction of a board of Senate-confirmed commissioners and insulated them from unjustified removal by the president."

Ford continues, "This has generally been a good thing for the American people. Agencies like the FTC, the Securities and Exchange Commission, the National Labor Relations Board, and so on have existed for roughly a century now — a century where Americans enjoyed unprecedented growth in prosperity, quality of life, and individual liberty."

But Ford warns that "the conservative legal movement" and the High Court's right-wing justices have "a much different view." And he believes that the Humphrey’s Executorstandard from 90 years ago is "doomed."

Ford writes, "They favor the Unitary Executive Theory, whereby presidents should be able to wield absolute control over every aspect of the executive branch…. It is virtually certain that Slaughter will lose. "

*Read Matt Ford's full article for The New Republic at this link.

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AN 1225

On Monday, December 8, the U.S. Supreme Court is scheduled to hear oral arguments in Trump v. Slaughter,which deals with the legality of President Donald Trump's firing of Rebecca Slaughter — a former commissioner for the Federal Trade Commission (FCC).

According to legal experts, the case has major implications for the United States' system of checks and balances. One of those experts is Kate Shaw, a law professor at the University of Pennsylvania in Philadelphia.

In an op-ed published by the New York Times on December 8, Shaw stresses that Trump v. Slaughter "will decide whether to grant the president, for the first time in American history, the power to fire the heads of virtually all independent agencies at will."

"This would be a vast transfer of power from Congress to the president," Shaw warns. "The Constitution doesn't explicitly grant the president any such power, and nearly a century ago, the (U.S. Supreme) Court unanimously rejected an argument that the president possessed it. Today's Republican-appointed justices appear to be firmly under the sway of an atextual and ahistoric theory — the Unitary Executive Theory — that demands complete presidential control over essentially every government agency and insists that the power to fire agency heads at will is an indispensable part of such control."

Shaw notes that over the years, Congress has given some federal agencies "a degree of independence from the president."

"Giving a president complete control would have a profound impact on how our government functions and the ability of these agencies to do work that touches the lives of practically every American," the Penn law professor explains. "It could undermine, in tangible and immediate ways, agencies' ability to safeguard consumers' privacy, ensure the rights of workers and unions, minimize the hazards posed by ordinary household products and more. In his brief in Slaughter, President Trump insists that the Constitution grants him, as part of his core powers, the ability to remove agency leaders at will."

Shaw adds, "In this case, he is trying to remove Rebecca Slaughter from the Federal Trade Commission…. Despite Mr. Trump's claims, presidential power is not so fragile that a few Democratic appointees at an agency like the FTC pose a mortal threat to it."

*Kate Shaw's full op-ed for the New York Times is available at this link (subscription required).

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AN 12 25

On Monday morning, December 8, the U.S. Supreme Court listened to oral arguments in Trump v. Slaughter — a case dealing with President Donald Trump's ability, under the U.S. Constitution, to fire employees of independent government agencies.

Trump and his allies, in the case, are promoting a far-right legal doctrine known as the Unitary Executive Theory — which claims that presidents have total control over who can be fired in the federal government. But opponents of the Unitary Executive Theory vehemently disagree, arguing that Congress has the ability to create agencies that are independent from a president's executive powers. One of those opponents is Rebecca Slaughter, who is arguing that Trump had no right to fire her from the Federal Trade Commission (FTC) because of the independence she enjoyed.

During the December 8 hearing, Solicitor General John Sauer was aggressively grilled by the High Court's three Democratic appointees: Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson. And MS NOW's Lisa Rubin offered, emphasizing that Kagan was essentially accusing Trump of trying to carry out an "enormous power grab." VID]

Rubin told Cabrera, "This concept of a unitary executive…. has gained currency among political conservatives," adding, "Certainly, it's not a legally conservative theory because it is a gigantic enlargement of executive power. That's not how legal conservatives have traditionally thought, but that is what's going on here."

According to Rubin, the "liberal justices" are "playing out the consequences of the logic being employed by the (Trump) Administration, which is (that) this isn't just about the FTC."

Rubin told Cabrera, "I want to read to you something that Justice Kagan said in her discussion with the solicitor general, John Sauer, because I thought it got to the heart of what this is really about…. The idea was that the president was supposed to do the executing, but he wasn't supposed to do the legislating…. In other words, in Justice Kagan's view, this is a power grab by the president… That, according to Justice Kagan and the other liberals on the Court, is an enormous power grab with real consequences for our country."

Georgetown University law professor Paul Butler, also on the panel, predicted that the High Court's GOP-appointed justices will "almost certainly" rule in Trump's favor and "say the president has the authority to fire the FTC commissioner."

"This outcome is virtually certain," Butler told Cabrera and Rubin — who agreed with him that the outcome in Trump v. Slaughter is a "fait accompli" and that the GOP-appointed supermajority will reject the arguments of Kagan, Sotomayor and Jackson."

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AN SLATE 12 25

Slate Senior writer Mark Joseph Stern says the Supreme Court is gearing up to hand President Donald Trump kinglike firing powers over independent federal agencies in Trump v. Slaughter, peddling the false argument that the Constitution gives the commander in chief absolute control over the executive branch.

The argument from conservatives on the court is that this supreme power is rooted in tradition, but “they are wrong in every conceivable way,” said Stern.

“Their pop-historical account of the Constitution has been debunked from top to bottom by legitimate legal historians, who have refuted the rotten moorings of this bogus theory with devastating precision. And yet there is no real question that the Supreme Court’s Republican-appointed justices will endorse it anyway in Slaughter, handing Trump sweeping new authority to abuse his office in direct violation of federal law,” said Stern. “This near-inevitable ruling confirms the most stinging critique of originalism: It allows judges to align constitutional meaning with the Republican Party’s preferences, disregarding evidence that contradicts their desired outcome.”

When Congress created the FTC in 1914, it allowed the president to fire commissioners only for “inefficiency, neglect of duty, or malfeasance in office.” Lawmakers wanted a panel of experts insulated from partisan pressure who would act in the best interest of the American people rather than promote the president’s ambitions. And in 1935 the Supreme Court unanimously upheld these good-cause protections against removal in a landmark decision called Humphrey’s Executor.

Leaders at more than two dozen multimember agencies are, for now, shielded against presidential termination by statute, giving people like Federal Reserve Chair Jerome Powell independence from Trump, no matter how hard Trump boasts of wanting to remove him.

But when Rebecca Slaughter, a Democratic member of the Federal Trade Commission, sued over her firing lower courts reinstated her SCOTUS overruled them by a 6–3 vote through the shadow docket, without argument or debate. Stern said these six justices did the same when other agency leaders sued for their jobs. Then the conservative supermajority scolded lower courts for failing to accept that Trump’s removals were now endorsed and legitimized by the Supreme Court.

The Republican-appointed justices want Trump to be king because all six are deeply committed to the “unitary executive” theory, an idea that Stern said is foundational to the modern conservative legal movement.

“The premise of the theory is that the president does not merely lead the executive branch; he is the executive branch, because the Constitution vests the ‘executive power’ in him alone,” said Stern. “Agencies like the FTC and the NLRB ostensibly exercise this power by interpreting and enforcing the law. But under the Constitution, they may do so only on the president’s behalf. And so if the president disagrees with officers leading these agencies, he must be able to fire them at will. Any impediment to this ‘removal power’ unduly restricts the commander in chief’s inherent authority.”

But the actual text of the Constitution says none of this, Stern adds. There is no “removal clause,” nor any definition of “executive power” that implies total dominion over the executive branch.

“… [James] Madison acknowledged that some executive branch officials could be shielded from termination. So did Alexander Hamilton, who argued that the president could not fire executive officers without the consent of the Senate. So did Chief Justice John Marshall, who arguably did more in this period than any of his contemporaries to shape constitutional interpretation,” Stern said.

The fact that the first Congress enacted an independent agency, the Sinking Fund Commission, to manage repayment of the nation’s debt and the president was unable to fire several of its members alone “reveals that many of the men who wrote the Constitution did not think that it gave the president unlimited authority to fire high-ranking federal officials,” said Stern.

“Now Trump wants the Supreme Court to say that Madison, Hamilton, Marshall, Story, and all the rest were wrong. He wants the justices to give him the unprecedented authority to seize control of the FTC, the NLRB, and other independent agencies by sacking their Democratic members,” said Stern.

Read the Slate article at this link.

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OMFG PUBLIC HEALTH

an 11 25

When President Donald Trump posted a satirical music video on social media in early October depicting his budget director, Russell Vought, as the Grim Reaper lording over Democrats in Congress, public health workers recognized a kernel of truth.

Vought has exerted extraordinary control over government spending this year, usurping congressional decisions on how the nation’s money is used. His push for more layoffs during the government shutdown is only the latest blow, following months of firings, canceled grants, and withheld funds.

By cutting and freezing public health funds, in particular, the Trump administration has already begun to undercut efforts to provide medical care, outbreak response, housing assistance, and research across the U.S., according to health officials, nonprofit directors, and federal agency staffers interviewed by KFF Health News.

Since most federal funds for public health flow to states, Vought is rivaling the Department of Health and Human Services secretary, Robert F. Kennedy Jr., in his ability to upend government-led efforts to keep Americans healthy. In Texas, Centers for Disease Control and Prevention funds to stem a measles outbreak weren’t available until after the crisis had subsided and two children had died. A project to protect Alabamans from raw sewage and hookworm was abandoned. People with HIV have had to delay medical care as clinics scale back hours. Time-dependent surveys on HIV and maternal mortality were halted. Food banks have canceled events. Tobacco prevention programs lapsed. Initiatives to protect older adults at risk of falling have been harried.

No matter what budget Congress ultimately passes for next year, the Trump administration may continue to thwart financial support for such programs in ways that will harm people’s health. “The White House has shown that they are willing to unilaterally exert control over funding,” said Gillian Metzger, a constitutional law professor at Columbia University.

“This is a huge deal,” she added, “because the power of the purse is central to Congress’ ability to shape and direct policy.”

Before he was appointed to lead the White House’s Office of Management and Budget this year, Vought outlined budgetary strategies the executive branch could deploy to wrest power from Congress and federal agencies in Project 2025, the Heritage Foundation’s conservative blueprint.

Vought’s tactics unfolded this year, often below the radar. They include abrupt grant cancellations, extraordinary constraints on how funds can be spent, and excessive layers of review, agency officials say, at every step in the grantmaking process. Getting money out the door has been further complicated by layoffs that have gutted offices overseeing grants on chronic disease prevention, HIV, maternal mortality, and more.

Government employees have described these tactics to members of Congress, said Abigail Tighe, executive director of the National Public Health Coalition, a group that includes current and former staffers at the CDC and HHS. “We want Congress to act, because this is preventing states and communities from doing critical public health work to keep our country safe,” she said. “If they don’t have capacity, we all collectively suffer.”

Democrats on the House and Senate appropriations committees have pushed for transparency, but the extent to which money Congress appropriated for public health in 2024 and 2025 has gone unspent because of the administration’s disruptions is not yet known. “This is a sophisticated strategy to cause money to lapse and then say, ‘If they can’t spend it, they don’t need it,’” said Robert Gordon, a public policy specialist at Georgetown University and a former assistant finance secretary at HHS.

“No one thought this was possible or legal, but that is what’s happening,” he said.

Details on how the administration has subverted health spending have received little attention because many changes have been made quietly — and people who rely on federal funds fear retribution. The Trump administration has defunded and threatened federal offices that hold the government accountable and fired whistleblowers. It has abruptly revoked funds for local governments and organizations.

Vought and spokespeople at the White House and the OMB did not respond to queries from KFF Health News. However, Vought described his intentions in VID] a. He said that federal agencies and Congress had gained more power over spending since the 1970s and that their control became “woke and weaponized” under Presidents Barack Obama and Joe Biden.

“Thankfully, President Trump won,” he said. “And we have now been embarked on deconstructing this administrative state.”

Many Parts, Many Malfunctions

Like a car, the federal budget process has many components that can break down. Through the OMB and its partner, Trump’s Department of Government Efficiency, or DOGE, the administration has intervened at various junctures. “There are so many ways in which money is not operating in the way it is supposed to operate,” said Bobby Kogan, the senior director of federal budget policy at the Center for American Progress, a left-leaning think tank, and a former OMB adviser.

Typically, Congress passes a budget that appropriates money for the next fiscal year to federal agencies. For many public health programs, ranging from housing assistance to cancer screening, agencies then post open calls online for states, local governments, and organizations to apply for funding. Agency experts select winners and send notices of awards — or notices of ongoing funding to groups that previously won multiyear awards.

Next, the OMB, which administers the federal budget, activates money for agencies, like a bank activates a credit card, so that grantees can spend and get reimbursed rapidly. Auditors keep an eye on spending, but the government has in the past limited interruptions so that programs run smoothly.

Early on, the Trump administration canceled billions of dollars in awards granted in 2024 and early 2025 for research and global health. In March, it clawed back $11.4 billion in covid-era funds that Congress had earmarked for health departments that were using the money for disease surveillance, vaccinations, and more.

Although some funds have been restored because of lawsuits, the Supreme Court has allowed other cuts by the administration to stand while the cases move through the courts.

Beyond these “shotgun” cancellations, the administration has taken a quieter, “in-the-weeds, slowing, cutting, conditioning” approach that’s frozen funds for public health, said Matthew Lawrence, a law professor specializing in health policy at Emory University.

By August, the CDC’s center for HIV and tuberculosis prevention had doled out $167 million less than the historical average, according to an analysis by the Center on Budget and Policy Priorities, a think tank focused on reducing inequality. The CDC’s funding for chronic disease prevention lagged by $259 million, the Ryan White HIV/AIDS Program had underspent by $105 million, and funds for mental health at the Substance Abuse and Mental Health Services Administration were more than $860 million behind what was expected.

An unknown amount of Congress’ 2025 funding for research and public health has yet to be awarded and will probably lapse this year, said Joe Carlile, an author of the center’s analysis and an associate OMB director during the Biden administration. The obstructions appear to be concentrated in areas where the White House proposed cutting the federal budget next year. “The administration may be executing their 2026 budget request through administrative controls,” Carlile said.

“This is boring but crazy-high stakes,” he added. “A one-branch veto of spending neuters the power of the purse in the Constitution that Madison said was the fundamental check on the executive branch.”

Incremental Chaos

A key tactic Vought described in Project 2025 occurs when the OMB activates funds for agencies in installments, called apportionments. Vought wrote that “apportioned funding” could “ensure consistency with the President’s agenda.”

Under Vought, the OMB shrank the size of apportionments, HHS and CDC staffers said. It’s illegal for agencies to let grantees withdraw money before the total amount is in the metaphorical bank, so that delayed agencies’ ability to greenlight spending.

The OMB and DOGE also placed conditions on apportionments through memos, footnotes, and spoken directives telling agencies to ensure that spending “aligns with Administration priorities,” according to reports and HHS employees who said that notices of funding opportunities and awards required excessive layers of sign-off. The CDC and other agencies circulated lists of priorities that reflect White House stances, including those targeting diversity, equity, and inclusion efforts; immigration; and transgender rights. Public health efforts have been especially caught up in red tape, since many focus on populations bearing an unequal burden of death, disease, and injury.

Groups that rely on federal funds have largely been unaware of the reasons grants were held up, but they’ve fielded what they viewed as unsettling queries. For example, Kathy Garner, the head of a Mississippi nonprofit, said officials asked her to defend the exclusion of men from a program to shelter women who experienced domestic violence.

Delays were made worse by uncertainty. Grantees said they’ve been unable to reach program officers because tens of thousands of federal workers have been laid off. Agency officials said firings slow funding further.

“Everyone’s inbox is full of letters from grant recipients asking, ‘How do we proceed?’” one high-ranking CDC official told KFF Health News, which granted agency officials anonymity because of their fears of retaliation. “We just say, ‘Please wait.’”

Time was critical as a measles outbreak surged in West Texas early this year. The state asked for federal funding for the response in March, but it didn’t arrive until May, after the outbreak had largely faded in Texas, according to an investigation by KFF Health News. Apportionment control was a key reason, CDC staffers said.

In July, 81 HIV organizations sent a letter to Kennedy. “With every day of delayed FY2025 funding release, the delivery of essential HIV services is compromised,” said the letter, which was reviewed by KFF Health News. Because of delays and uncertainty, it said, HIV clinics had laid off case managers and reduced clinician hours, closed sites, and pared down hotlines that patients call with urgent questions. The funds arrived about a month later, but HIV providers remain shaken.

Lauren Richey, medical director at University Medical Center’s HIV clinic in New Orleans, backed out of hiring a sorely needed dentist she had recruited. “I was afraid to tell someone to move across the country for a job when I wasn’t sure if or when we’d get the funding for their salary,” she said. “The wait is now three to four months for dental services, when it was usually a couple of weeks at most.”

Tamachia Davenport, program director at the St. John AIDS outreach ministry in New Orleans, said that “a lot of us are having to rob Peter to pay Paul.”

When the group didn’t get CDC funds it expected this summer, Davenport had to decide between cutting staff or supplies. Concerned her top employees would take jobs elsewhere, she stopped buying the condoms they distribute throughout the city to prevent the spread of sexually transmitted infections.

Louisiana already has one of the highest rates of HIV, chlamydia, and gonorrhea in the country. Condoms cost far less than treating these diseases. For a person infected by HIV at age 35, such costs exceed $326,000.

Groups focused on cancer, diabetes, and heart disease also report lasting repercussions from delays, as well as ongoing fears that they will happen again. Louisiana State University’s Healthy Aging Research Center canceled some of its workshops to train health workers on caring for people with dementia. “There may be fewer people who have this very specific expertise next year in Louisiana and Mississippi,” said Scott Wilks, the director of the center. “That’s on top of the big shortage we have already.”

Nationwide surveys tallying maternal and infant mortality froze for about five months because of funding delays, causing an irrecoverable gap in data that had been collected continuously since 1987, CDC officials say.

“We are seeing the administration get their way with or without an approved budget,” one said. “It’s such a terrible shame to play with people’s health this way.”

DOGE also inserted itself into grant reimbursements this year, stalling the rapid turnaround that public health groups typically expect to cover salaries, rent, and other monthly costs outlined in budgets that have already been approved. In what’s now labeled Departmental Efficiency Review, itemized expenses must be regularly justified by multiple government officials, according to documents reviewed by KFF Health News.

DOGE posted on its website expense reports covering about a month’s span from April to May. Nearly 230 of the individual expenses filed to federal agencies during that period are for $1 or less. Other entries break down monthly salaries for individual employees and petty costs for postage or monthly subscriptions.

“Public funds deserve scrutiny, but this is different from audit practices I’ve been a part of,” Carlile said.

DOGE also stalled calls for applications for 2025 funding — and some calls never appeared as the fiscal year came to a close on Sept. 30. Among them are programs for groups that provide housing assistance. People will be evicted when these organizations run out of money left over from 2024, said Steve Berg, chief policy officer at the National Alliance to End Homelessness.

Other solicitations came out months behind schedule, leaving groups with a few weeks to put together complicated applications for multimillion-dollar awards, including for Alzheimer’s care, addiction recovery, senior support, and chronic disease management.

“They’ve set projects up to fail,” one HHS official said.

*KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

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AN 10 25

President Donald Trump set the tone for his second term by issuing 26 executive orders, four proclamations and 12 memorandums on his first day back in office. The barrage of unilateral presidential actions has not yet let up.

These have included Trump’s efforts to remove thousands of government workers and fire several prominent officials, such as members of the Corporation for Public Broadcasting and the chair of the Commission on Civil Rights. He has also attempted to shut down entire agencies, such as the Department of Education and the U.S. Agency for International Development.

For some scholars, these actions appear rooted in the psychology of an unrestrained politician with an overdeveloped ego.

But it’s more than that.

As a political science scholar who studies presidential power, I believe Trump’s recent actions mark the culmination of the unitary executive theory, which is perhaps the most contentious and consequential constitutional theory of the past several decades.

A prescription for a potent presidency

In 2017, Trump complained that the scope of his power as president was limited: “You know, the saddest thing is that because I’m the president of the United States, I am not supposed to be involved with the Justice Department. I am not supposed to be involved with the FBI, I’m not supposed to be doing the kind of things that I would love to be doing. And I’m very frustrated by it.”

The unitary executive theory suggests that such limits wrongly curtail the powers of the chief executive.

Formed by conservative legal theorists in the 1980s to help President Ronald Reagan roll back liberal policies, the unitary executive theory promises to radically expand presidential power.

There is no widely agreed upon definition of the theory. And even its proponents disagree about what it says and what it might justify. But in its most basic version, the unitary executive theory claims that whatever the federal government does that is executive in nature – from implementing and enforcing laws to managing most of what the federal government does – the president alone should personally control it.

This means the president should have total control over the entire executive branch, with its dozens of major governmental institutions and millions of employees. Put simply, the theory says the president should be able to issue orders to subordinates and to fire them at will.

The president could boss around the FBI or order the U.S. attorney general to investigate his political opponents, as Trump has done. The president could issue signing statements – a written pronouncement – that reinterpret or ignore parts of the laws, like George W. Bush did in 2006 to circumvent a ban on torture. The president could control independent agencies such as the Securities and Exchange Commission and the Consumer Product Safety Commission. The president might be able to force the Federal Reserve to change interest rates, as Trump has suggested. And the president might possess inherent power to wage war as he sees fit without a formal authorization from Congress, as officials argued during Bush’s presidency.

A constitutionally questionable doctrine

A theory is one thing. But if it gains the official endorsement of the Supreme Court, it can become governing orthodoxy. It appears to many observers and scholars that Trump’s actions have intentionally invited court cases by which he hopes the judiciary will embrace the theory and thus permit him to do even more. And the current Supreme Court appears ready to grant that wish.

Until recently, the judiciary tended to indirectly address the claims that now appear more formally as the unitary executive theory.

During the country’s first two centuries, courts touched on aspects of the theory in cases such as Kendall v. U.S. in 1838, which limited presidential control of the postmaster general, and Myers v. U.S. in 1926, which held that the president could remove a postmaster in Oregon.

In 1935, in Humphrey’s Executor v. U.S., the high court unanimously held that Congress could limit the president’s ability to fire a commissioner of the Federal Trade Commission. And in Morrison v. Olson the court in 1988 upheld the ability of Congress to limit the president’s ability to fire an independent counsel.

Some of those decisions aligned with some unitary executive claims, but others directly repudiated them.

Warming up to a unitary executive

In a series of cases over the past 15 years, the Supreme Court has moved in an unambiguously unitarian, pro-presidential direction. In these cases, the court has struck down statutory limits on the president’s ability to remove federal officials, enabling much greater presidential control.

These decisions clearly suggest that long-standing, anti-unitarian landmark decisions such as Humphrey’s are on increasingly thin ice. In fact, in Justice Clarence Thomas’ 2019 concurring opinion in Seila Law LLC v. CFPB, where the court ruled the Consumer Financial Protection Bureau’s leadership structure was unconstitutional, he articulated his desire to “repudiate” the “erroneous precedent” of Humphrey’s.

Several cases from the court’s emergency docket, or shadow docket, in recent months indicate that other justices share that desire. Such cases do not require full arguments but can indicate where the court is headed.

In Trump v. Wilcox, Trump v. Boyle and Trump v. Slaughter, all from 2025, the court upheld Trump’s firing of officials from the National Labor Relations Board, the Merit Systems Protection Board, the Consumer Product Safety Commission and the Federal Trade Commission.

Previously, these officials had appeared to be protected from political interference.

Total control

Remarks by conservative justices in those cases indicated that the court will soon reassess anti-unitary precedents.

In Trump v. Boyle, Justice Brett Kavanaugh wrote, “whether this Court will narrow or overrule a precedent … there is at least a fair prospect (not certainty, but at least a reasonable prospect) that we will do so.” And in her dissent in Trump v. Slaughter, Justice Elena Kagan said the conservative majority was “raring” to overturn Humphrey’s and finally officially embrace the unitary executive.

In short, the writing is on the wall, and Humphrey’s may soon go the way of Roe v. Wade and other landmark decisions that had guided American life for decades.

As for what judicial endorsement of the unitary executive theory could mean in practice, Trump seems to hope it will mean total control and hence the ability to eradicate the so-called “deep state.” Other conservatives hope it will diminish the government’s regulatory role.

Kagan recently warned it could mean the end of administrative governance – the ways that the federal government provides services, oversees businesses and enforces the law – as we know it:

“Humphrey’s undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control. Congress created them … out of one basic vision. It thought that in certain spheres of government, a group of knowledgeable people from both parties – none of whom a President could remove without cause – would make decisions likely to advance the long-term public good.”

If the Supreme Court officially makes the chief executive a unitary executive, the advancement of the public good may depend on little more than the whims of the president, a state of affairs normally more characteristic of dictatorship than democracy.

Graham G. Dodds, Professor of Political Science, Concordia University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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9 25 shadow docket

racial profile ok

humphreys executor fire ftc etc

The Presidential Empire - Dissent Magazine

'Unconstrained executive power': George Will slams Trump as 'most statist' president in 'US history'

an 5 25

U.S. Supreme Court “has undermined lower courts” and “effectively allowed the president to neutralize some of the last remaining sites of independent expertise and authority inside the executive branch,” University of Pennsylvania law professor Kate Shaw warns. And doing so could have a catastrophic impact of the rule of law in the country.

Shaw, writing for the New York Times, discussed a recent decision by the Supreme Court to “stay” rulings from the U.S. District Courts and the full D.C. Circuit. That ruling permitted President Donald Trump to fire high-level officials — a move previously considered “unlawful under existing precedent.”

Shaw in her essay argues against the “unitary executive theory” and its proponents’ “singular fixation on the president’s power to fire — a power the Constitution doesn’t expressly give the president.”

“Even if you disagree — even if you think that Article II’s grant of ‘the executive power’ to the president includes the power to fire at will any high-level official in the executive branch — the court’s disposition of the case sends a profoundly dangerous message to the White House,” Shaw warns. “…Handing the president a win here suggests that the administration did not need to abide by Congress’s statutes or the Supreme Court’s rulings as it sought to change legal understandings.”

“This decision risks emboldening the administration further to act outside of our traditional constitutional order,” she adds.

Shaw writes:

*In the past four months, the lower courts have done more than other government entities to respond to the chaos emanating from the Trump administration. They have enforced constitutional guarantees, required compliance with statutes and insisted on the force of the decisions of the Supreme Court.

The Supreme Court, by contrast, has undermined lower courts seeking to protect the rule of law and emboldened an administration eager to trample it. You can see why White House lawyers could feel encouraged to advise Mr. Trump of the correctness of a claim he was once mocked for making: “I have an Article II, where I have the right to do whatever I want as president.”*

Shaw called the decision “radical,” arguing “it effectively overruled an important and nearly century-old precedent central to the structure of the federal government without full briefing or argument.”

IFrame Content

“Many of it decisions involving the presidency — including last year’s on presidential immunity — have enabled the president to declare himself above the law," Shaw warned. "The court’s latest order both enables the consolidation of additional power in the presidency and risks assimilating a ‘move fast and break things’ ethos into constitutional law."

For Shaw, the Supreme Court’s decision to hamstring lower courts could signal it believes “itretains the ultimate authority to check presidential lawlessness.”

“The danger is that by the time the court actually tries to exercise that authority, it may be too late,” she adds.

Read the full essay at the New York Times.

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BEEF UP OMB OIRA?

AN 2 25

Trump signed an executive order Tuesday that vastly expands his influence over the federal government. At the heart of the order is the unitary executive theory, a controversial idea that says the president has the sole authority over the Executive Branch. The order makes it so that Trump controls several independent agencies.

“The action is likely to face court challenges and test a once-fringe legal theory,” according to Politico. They later add: “many mainstream legal scholars still believe it is illegal.”

The theory has also come into question in the case of Trump's firings throughout the federal government, including watchdogs and the head of the Consumer Financial Protection Bureau.

The agencies affected by Tuesday’s executive order include the Federal Communications Commission, the Federal Trade Commission and the Securities and Exchange Commission, all of which were set up by Congress to act at least semi-independently.

Project 2025 architect Russell Vought, Trump’s budget chief, is a champion of the unitary executive theory. The executive order places him as supervisor to these agencies, saying he will “establish performance standards and management objectives.”

“The unitary executive theory has always been a dangerous idea given the risk of presidential overreach and abuse of power,” Christopher Wright Durocher, vice president of policy and program at the American Constitution Society, wrote earlier this month. “And Trump is practicing a unitary executive on steroids, brazenly stepping on Congress’s constitutional power and daring a House and Senate controlled by his party to stop him. Congress can and should reclaim its role, and as litigants file suits, the federal judiciary can also weigh in. Without pushback from the other two branches of government, however, there’s no telling how hulking Trump’s unitary executive may become.”

“The most controversial aspect of the UET is the president’s removal power,” according to the Legal Information Institute at Cornell Law School. The theory says that the president can remove subordinate appointees — multiple presidents have used this theory to remove executive officials who the previous president appointed.

The 2021 Supreme Court case Collins v. Yellen established that the president is able to remove agency officials who were appointed by Congress at will. This decision allowed President Joe Biden to remove Federal Housing Finance Agency Director Mark Calabria, a Trump appointee. He later fired Trump appointee Andrew Saul, who was Social Security commissioner.

“Democrats may have rejoiced at President Biden’s decision to remove Trump holdover Andrew Saul as the Commissioner of the Social Security Administration. But they should think twice about the long-term effects of claiming a constitutional power to fire a commissioner appointed to a six-year term without invoking the statutory provision allowing for-cause removal,” Syracuse University College of Law professor David M. Driesen wrote at the time.

“The unitary executive theory, which embraces presidential removal of agency heads for political reasons, provides a pathway to autocracy,” he wrote. He added: “A President with autocratic tendencies can use just about any government power to reward his friends and punish his enemies. President Trump showed this on numerous occasions.”

"This is where the debate is: at what point does the kind of power that Trump wants and the way he exercises his power cross over from a constitutional vision about presidential power to an a-constitutional vision," Bob Bauer, a law professor at New York University and former White House counsel under President Barack Obama told ABC News.

"He's going to do an enormous amount of damage that the courts can't in all cases readily remediate," he added. "By the time he's finished emptying out some of these agencies and in some cases closing them, putting all that back together again is going to be very challenging."

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an 2 25

You know you are in deep constitutional trouble when your president invokes an apocryphal quote attributed to Napoleon Bonaparte to justify his contempt for the rule of law. On Feb. 15, Donald Trump took to his Truth Social platform and his personal X account to post the quote, “He who saves his Country does not violate any Law.” Later the same day, the official White House X account sent out the same message.

People who imitate Napoleon have long fascinated psychiatrists. In their field, “Napoleonic delusions” are classified as a subtype of the wider emotional disorder known as grandiosity. But whether Trump actually suffers from a definable mental illness or is simply trolling the libs, there is ample reason to believe he thinks he is above the law; or perhaps more accurately, that he is the law.

All of this looks to be pointing directly to a full-blown constitutional crisis.

Since his inauguration on Jan. 20, Trump has undertaken a variety of sweeping Napoleonic actions aimed, among other targets, at rolling back birthright citizenship guaranteed by the 14^th Amendment; impounding and freezingfederal funds appropriated by Congress; asserting direct presidential control over independent federal agencies like the Securities and Exchange Commission, Federal Trade Commission, Federal Communications Commission, National Labor Relations Board and U.S. Agency for International Development; pink-slipping thousands of federal workers; expunging all diversity, equity, inclusion and accessibility programs from all federal agencies; removing LGBTQ mandates in government; and creating the Department of Government Efficiency to give Elon Musk and his post-pubescent DOGE minions authority to access confidential Treasury Department, IRS and Social Security databases. Vice President JD Vance has also floated the idea of defying adverse court orders.

Trump has been aided in his power grab by supine Republican majorities that have rubber-stamped his appointment of cabinet members. And while lower-court judges have pushed back against some of Trump’s actions, many of his executive orders appear headed to a Supreme Court firmly in the hands of a six-member MAGA-friendly majority, including three justices nominated by Trump himself.

All of this looks to be pointing directly to a full-blown constitutional crisis.

Although there is no universally accepted definition of a constitutional crisis, experts generally agree the term applies to situations where the Constitution no longer works as designed. In a 2017 essay for LawFare, Princeton political scientist Keith Whittington subdivided constitutional crises into “operational” and “fidelity” categories. The operational type, according to Whittington, occurs “when important political disputes cannot be resolved within the existing constitutional framework.” Crises of constitutional fidelity occur when the Constitution’s meaning is clear, but one or more branches of government or a key political actor willfully defies the national charter’s clear meaning.

Law professors Jack Balkin of Yale and Sanford Levinson of the University of Texas at Austin have added a third type of crisis to the operational/fidelity taxonomy that occurs when a power struggle breaks out between political rivals who allege the other is violating the Constitution and neither is willing to budge.

The archetypal constitutional breakdown, embodying all three dimensions, was the secession crisis that led to the Civil War. By the late 1850s, the slave-based economy of the Southern states had become incompatible with the wage-based industries of the North. The Constitution effectively ceased to function as more territories sought admission to the union and the balance between slave and free states could no longer be maintained.

Some commentators point to lesser historical antecedents such as the disputed election of 1876 that resulted in the election of Rutherford B. Hayes and the end of Reconstruction; Franklin Delano Roosevelt’s conflict with the Supreme Court over the New Deal; and the Watergate scandal of Richard Nixon.

What all constitutional crises share is an attempt to impose a paradigm shift in the practice of governance. And while Trump is no intellectual powerhouse, his narcissism and obsession with revenge make him the perfect instrument for promoting transformative ideas masterminded by others. These include:

The unitary executive theory

Harkening back to Nixon’s infamous declaration that “when the president does it, that means it is not illegal,” the unitary theory was first articulated as an explicit doctrine during the Reagan administration. Among its early proponents were Reagan-era Attorney General Edwin Meese and Samuel Alito, then a deputy in the Office of Legal Counsel.

In a widely cited 2006 essay, professors Karl Manheim and Allan Ides of Loyola Law School in Los Angeles described the doctrine as a theory of presidential supremacy that undermines the constitutional scheme of checks and balances:

The theory of the unitary executive is anything but an innocuous or unremarkable description of the presidency. In its stronger versions, it embraces and promotes a notion of consolidated presidential power that essentially isolates the Executive Branch from any type of Congressional or judicial oversight.

The theory was also championed by Bill Barr during his time as an OLC deputy in the George H.W. Bush administration. In 2018, Barr, then in private practice, restated his views in an unsolicited memorandum he sent to the Justice Department, criticizing the work of Special Counsel Robert Mueller, writing:

The Constitution itself places no limit on the President’s authority to act on matters which concern him or his own conduct. … He alone is the Executive branch [and] the sole repository of all Executive powers.

In February 2019, Trump made Barr his attorney general. The following July, Trump gave a speech, asserting that under Article II of the Constitution [which sets forth the powers of the presidency], “I have the power to do whatever I want.” Barr remained in office, operating in effect as Trump’s personal consigliere until December 2020, when he resigned under duress after failing to find widespread fraud in the 2020 election.

The radical constitutionalism of Russell Vought

A more aggressive version of the unitary theory animated by religious zealotry has been crafted by Russell Vought, recently confirmed for a second stretch as head of the Office of Management and Budget.

Vought is a graduate of the Georgetown University Law Center, a self-described Christian Nationalist, and a founder of the Center for Renewing America, a right-wing think tank dedicated to “forging a consensus of America as a nation under God.” Most importantly, he was one of the prime architects of Project 2025, the Heritage Foundation-sponsored blueprint for Trump’s second term.

There is no question that Vought’s ideas have caught Trump’s attention.

In a 2022 article written for the Claremont Institute, Vought urgently called for the restoration of presidential power as originally envisioned by the founders and for the defeat of progressive “living constitutionalism,” the jurisprudential model that holds the meaning of the Constitution should evolve over time. What is needed, Vought contends, is a form of “radical constitutionalism” committed to bolstering presidential power and curbing the power of the courts to bring the separation of powers back into balance and harmony.

There is no question that Vought’s ideas have caught Trump’s attention, as shown by his second nomination to head OMB and by Trump’s persistent pandering to the religious right.

Common-good constitutionalism

Dissatisfied with both originalism and living constitutionalism, Harvard Law professor Adrian Vermeule has come up with an alternative known as “common good constitutionalism.” Rather than pursue the fruitless quest of trying to discern the original intent of the founders or undertaking an endless quest to expand individual rights, Vermeule argues that judges should promote the “common good.”

Vermeule distilled his theory in the April 2000 issue of the Atlantic, writing that the goal of common good constitutionalism

is not is not to maximize individual autonomy or to minimize the abuse of power (an incoherent goal in any event), but instead to ensure that the ruler has the power needed to rule well … to promote substantive moral principles that conduce to the common good, [such as] respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function … [and] a candid willingness to “legislate morality.”

Analytically, Vermeule fails to adequately define the common good, and to the extent he does in the article and elsewhere, his formulations are infused with the principles of “integralism,” an ideology that calls for subordinating the state to the values of the Catholic Church. Like proponents of the unitary executive theory, Vermeule calls for a strong president who pursues the common-good through “reasoned morality” for the benefit of all. Rather than rebelling, Vermeule suggests:

Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.

Politically, Vermeule has been linked to fellow integralist Vance. In a recent post on X, he praised Vance’s incendiary address on free speech and religious freedom delivered at the Munich Security Conference this month.

The Dark Enlightenment

Still operating on the fringes of mainstream discourse but growing in potency is the Dark Enlightenment, also known as “the neo-reactionary movement,” an informal futuristic community of political theorists, academics, internet bloggers and Silicon Valley investors who believe that democracy has run its course and is no longer compatible with individual liberty.

Most Americans will be loath to hand over their rights and freedoms to a new Napoleon.

The movement emerged in the 2000s, inspired by the work of British philosopher Nick Land and American software engineer Curtis Yarvin. Convinced that democracy inevitably leads to social decline, decadence and deep-state totalitarianism, proponents call for democracy to be supplanted by a technocracy run by a powerful CEO-style monarch. The movement reportedly has influenced the thinking not only of Vance, but also of Musk (note the dark MAGA hats sported of late), tech titan Peter Thiel and Michael Anton, a former speech writer for Rupert Murdoch, Rudy Giuliani and Condoleezza Rice. In January, Trump appointed Anton to serve as director of policy planning in the State Department.

The most important question, of course, is whether the new paradigms and the constitutional crisis they have helped spawn will succeed in ending democracy. Despite the wreckage produced by Trump’s early actions, there is cause for hope. Current polling shows Trump’s approval ratings are tanking. According to the most recent Gallup survey, Trump is the least popular president in more than 70 years.

It will take time for an effective opposition to form. But in the long run, most Americans will be loath to hand over their rights and freedoms to a new Napoleon. The worst thing we can do now is surrender.

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beware cato reason

how conservatives made peace with executive power.

“I took an oath, and I take that oath to the president very seriously,” former White House aide Sara Taylor told the Senate Judiciary Committee during the summer hearings on the U.S. attorneys purge. Taylor’s statement prompted an indignant clarification from Sen. Patrick Leahy (D–Vt.): “No, the oath says that you take an oath to uphold and protect the Constitution of the United States!”

Leahy was right, of course. But it’s not surprising that the 32-year-old Taylor, born the month after Nixon’s resignation, had some trouble locating the object of her sworn fealty. For as long as she’s been alive, the conservative movement has prioritized the expansion of presidential power, often at the expense of the Constitution.

It wasn’t always that way. Almost to a man, the conservatives who coalesced around William F. Buckley’s National Review in 1955 associated executive power with liberal activism and viewed Congress as the conservative branch. In 1967 the right-wing intellectuals Russell Kirk and James McClellan praised the late Ohio Sen. Robert Taft, “Mr. Conservative,” for warning that an overly aggressive foreign policy threatened to “make the American President a virtual dictator.” During his 1964 presidential bid, Barry Goldwater called the celebration of presidential power “a philosophy of government totally at war with that of the Founding Fathers.”

Yet Goldwater’s distrust of presidential power fit uneasily with his embrace of a hyper-aggressive posture in the struggle against the Soviet Union. When conservatives did support the expansion of presidential power, it was almost always in the context of foreign policy. Even so, postwar, pre-Watergate conservatives in Congress voted against the expansion of presidential power more consistently than did liberals.

That began to change with Nixon. Prominent conservatives began to see the executive as the conservative branch and set to work developing a conservative case for the imperial presidency. Right-wing ressentiment over Nixon’s downfall helped drive the shift. As the right-wing writer M. Stanton Evans quipped, “I didn’t like Nixon until Watergate.”

Conservatives started to consistently vote for major expansions of presidential strength, even when those expansions contradicted traditionally conservative positions. By the Reagan era, prominent Republicans were calling for a repeal of the 22nd Amendment, which limits presidents to two terms. In the ’90s, then-Speaker Newt Gingrich led an unsuccessful effort to repeal the War Powers Act, even though that would have increased the powers of President Clinton. “I want to strengthen the current Democratic president,” Gingrich explained, “because he’s the president of the United States.”

Trying to strengthen the powers of the presidency when the office is occupied by a political enemy shows principle of a sort. But it’s not a recognizably conservative principle. Conservatism as its best has recognized man’s weakness for power. As Kirk put it in 1993, “The conservative endeavors to so limit and balance political power that anarchy or tyranny may not arise. In every age, nevertheless, men and women are tempted to overthrow the limitations upon power, for the sake of some fancied temporary advantage.”

Modern conservatives, by contrast, spent much of the ’90s trying to convince the nation that its highest office had been seized by an unscrupulous, venal man who would stop at nothing to retain power. They’ve spent much of this decade trying to tear down checks on that office’s power, all the while with another Clinton warming up in the on-deck circle.

The Heritage Foundation, the leading conservative think tank in D.C., still offers a Russell Kirk lecture series. The speaker at the Kirk Lecture of February 2006 was John C. Yoo — an architect of the PATRIOT Act, coauthor of White House legal memos asserting that the president could unilaterally suspend the Geneva Conventions, and the legal academy’s most prominent advocate of unbridled executive power.

You’ve come a long way, baby.

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AN 2 25

President Donald Trump made numerous executive orders after returning to the White House on January 20, some of which are which are being aggressively challenged in court — from firing more than a dozen inspectors general to an order calling for an end to birthright citizenship (which, Trump's critics say, is flat-out illegal because birthright citizenship is protected by the U.S. Constitution's 14th Amendment).

But Trump and some of his MAGA defenders are pushing a far-right idea known as the "unitary executive theory," which claims that a president has sole authority over the federal government's executive branch.

In an article published by Salon on February 8, three political science scholars — John A. Dearborn of Vanderbilt University in Nashville, Desmond King of Oxford University in England, and Stephen Skowronek of Yale University in New Haven, Connecticut — lay out some flaws with the "unitary executive theory."

Trump, according to the scholars, is determined to "test the boundaries of existing law"

"For example, the Office of Personnel Management sent a 'Fork in the Road' e-mail to federal employees designed to incentivize mass resignations," Dearborn, King and Skowronek explain. "Employees at the Department of Justice who had worked on special counsel Jack Smith's investigations were fired, despite their career status and protections from at-will removal. The president also fired several inspectors general, declining to provide the congressionally mandated 30-day notice and detailed reasons for their dismissal."

The scholars continue, "Such rapid-fire actions are already setting up court cases that will determine how much control the president can exercise over the civil service and whether any kind of restrictions on the president's removal power are constitutional."

Dearborn, King and Skowronek note that the "unitary executive theory" is promoted in Project 2025, the Heritage Foundation's 922-page blueprint for a second Trump presidency.

"Cultivated by the conservative legal movement and now widely shared within it," the scholars write, "this 'theory of the unitary executive' deploys the 'Vesting Clause' of Article II of the Constitution to declare that 'all of the executive power' belongs to the president alone…. No doubt the conservative legal movement believes that in advancing the unitary executive theory, it is espousing the true meaning of the Constitution. In fact, it boasts that it has rediscovered the original meaning. But we should be under no illusions that adopting such decisions would restore Americans' faith in the Constitution."

Dearborn, King and Skowronek continue, "Instead, judicial approval for the president’s actions would fatally undercut the Constitution's power-sharing design. It would turn the Constitution into a warrant for one group of participants to impose its will unilaterally on the rest."

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alternet-no lnx

How the morbidly rich are sabotaging the very system that made them wealthy

Thom Hartmann August 19, 2024

Recently, a reporter spoke with one of the chief architects of Project 2025 using a hidden camera and microphone and learned they’re still in tight with Trump, still planning to run his administration if he’s elected, still planning to gut the guardrails America has placed around capitalism over the past 100 years, and even planning to “pull the ladder up” to make it harder for entrepreneurs and small business people to succeed in America.

Their plan relies on a major reinvention of modern capitalism and is being pushed by people suffering from an identifiable metal illness. To see how they’re hoping to pull this off, it’s important and necessary to first understand that there are two types of capitalism: raw and regulated.

Raw capitalism — sometimes referred to as Laissez-faire (“leave alone”) or “unregulated” capitalism — reflects the very essence of predatory activity. As any Libertarian can proudly tell you, the only rule is that no capitalist can commit fraud against another capitalist and the only role for government is to provide a stable currency and a court system to prosecute fraud.

Raw capitalism could be called the law of the jungle; only the strong survive, and those who are the most ruthless and cutthroat end up with all the money and power while everybody else stands on the outside looking in. It favors psychopathy in the executive suite.

A handful of families, typically one for each industry, end up fabulously wealthy while their companies monopolize market sectors to keep new entrants and entrepreneurs out.

Workers, at the bottom of the hierarchy, are screwed: no unions are allowed, wages reflect how desperate working people are, and consumers live in a caveat emptor (“buyer beware”) world where ripoffs are common, food and products are often dangerous, and the environment is poisoned to keep cleanup costs low and thus profits high.

Raw capitalism is how most of the world ran until the first decades of the 20th century. You can read the story of it in most of Dickens’ novels. By the 1880s-1920s era, it had made a handful of families (Rockefellers/oil, Carnegie/steel, Vanderbilt/railroads, Astor/real estate, Armour/meatpacking, Morgan/banking, DuPont/chemicals, etc.) mind-bogglingly rich and succeeded in limiting the middle class to about 10 percent of Americans, mostly doctors, lawyers, and shopkeepers. Everybody else was dirt poor.

Regulated capitalism is an altogether different animal that expands a capitalist system to aid workers and consumers as well as capitalists.

With regulated capitalism, the rules of capitalism are expanded to benefit all of society, rather than exclusively the capitalists themselves. While it was championed in Adam Smith’s books A Theory of Moral Sentiments and Wealth of Nations(1776), and highlighted repeatedly by David Ricardo five decades later, it didn’t really come into fruition until the presidency of Franklin D. Roosevelt. His embrace of Keynesian economics transformed America and, ultimately, the entire free world.

President Roosevelt, when accepting his renomination in 1936, took on the advocates of raw capitalism — which had run the world just four years earlier — head-on:

“[O]ut of this modern civilization economic royalists carved new dynasties. New kingdoms were built upon concentration of control over material things. Through new uses of corporations, banks and securities, new machinery of industry and agriculture, of labor and capital—all undreamed of by the fathers—the whole structure of modern life was impressed into this royal service.”

It was a radical separation from the old order, and his audience cheered wildly as they realized FDR wanted to make capitalism, and America, a fairer and more compassionate nation.

“There was no place among this royalty for our many thousands of small business men and merchants who sought to make a worthy use of the American system of initiative and profit. They were no more free than the worker or the farmer. Even honest and progressive-minded men of wealth, aware of their obligation to their generation, could never know just where they fitted into this dynastic scheme of things.”

He challenged the most powerful men and companies in America, promising to strip them of the power to write laws and control politicians that they’d enjoyed for over a century. He called them out and took them on.

“It was natural and perhaps human that the privileged princes of these new economic dynasties, thirsting for power, reached out for control over Government itself. They created a new despotism and wrapped it in the robes of legal sanction. In its service new mercenaries sought to regiment the people, their labor, and their property. And as a result the average man once more confronts the problem that faced the Minute Man.”

And he pointed out how this corrupt system of raw capitalism had destroyed opportunity in America for average people while making a small group of “princes” richer than the kings of old.

“Throughout the Nation, opportunity was limited by monopoly. Individual initiative was crushed in the cogs of a great machine. The field open for free business was more and more restricted. Private enterprise, indeed, became too private. It became privileged enterprise, not free enterprise.”

Roosevelt beat the oligarchs and was successful in bringing regulated capitalism to America. His policies included the right of workers to unionize, aggressive enforcement of the nation’s new anti-monopoly laws, high levels of taxation on profits and great wealth, and consumer and worker protections guaranteed by government.

The result was the world’s first middle class that included more than half of all citizens.

Donald Trump, JD Vance, their billionaire donors, six Republicans on the Supreme Court, and Project 2025 have declared war on Roosevelt’s regulated capitalism; they want to turn the clock back to the raw capitalism Gilded Age of the 1920s by stripping regulatory agencies out of government, cutting taxes on the morbidly rich, and ending protections for labor.

Russell Vought was the guy who put Donald Trump's executive order banning the teaching of Black history (“CRT”) and other diversity training for federal employees into place when he was director of the Office of Management and Budget. Now he’s a principal architect of Project 2025 and the lead cheerleader for ending regulated capitalism and reverting to raw capitalism.

“Eighty percent of my time is working on the plans of what’s necessary to take control of these bureaucracies,” Vought said in the secretly-taped recording. “And we are working doggedly on that, whether it’s destroying their agencies’ notion of independence.”

In this effort, and the Supreme Court’s recent destruction of the Chevron Deference that authorized regulatory agencies to protect workers, consumers, and the environment, these reactionary (arguably “revolutionary”) Republicans are trying to pull up the ladder so a new generation of entrepreneurs will face a wall of monopolies and other barriers to achieving business success.

They are trying to gut the very system that created a large enough middle class to provide customers for their products, thus making them rich. They want to return us to the era of FDR’s libertarian “economic royalists,” an effort that will impoverish America just as it has every other country that’s tried it (Russia, Venezuela, Ecuador, Peru, etc.).

When psychologist Eric Fromm identified people as having either a “doing” or a “being” orientation, he nailed the personality characteristics of the billionaires and their well-paid toadies who’re promoting this dystopian future for America.

He argued that there’s a specific “hoarder” personality afflicted with a compulsion to constantly accumulate more, more, more stuff. When they’re poor, their apartments fill up with newspapers and tin cans. When they’re rich, their money bins fill up with cash.

In either case, they’re mentally ill and perpetually miserable. If they’re rich enough, their mental illness causes them to mercilessly exploit others for their own gain.

This is the psychology of this generation of wannabee economic royalists, and their plan to replace regulated capitalism with the old laissez-faire system will also destroy the remnants of the American middle class that FDR created.

We can’t let them get away with inflicting their mental illness on the rest of us. Double-check your voter registration and show up this fall!

===

DEMOC LABS

Kavanaugh. Presidential protector.

"Kavanaugh is a former Bush lieutenant who was not only a lawyer in the Florida recount of 2000, but inherited the pivotal job of staff secretary to the president. Legal experts see Kavanaugh as a presidential protector: He has radical views of executive power and privilege and has repeatedly raised doubts about whether presidents are accountable to other branches of government. This deference to presidential power is also a key reason Kavanaugh won the backing of President Trump. In his confirmation hearings, Kavanaugh pointedly refused to comment on whether a sitting president must respond to a subpoena or has the power to pardon himself." - Rolling Stone

Rewarded by George Bush. George Bush nominated Kavanaugh in 2003 for the United States Court of Appeals for the District of Columbia Circuit...

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far right Heritage Foundation created a platform for Trump that plots an authoritarian take-over of the country.

Donald Trump nearly destroyed American democracy in his first term in office. If he is reelected, he plans to try to finish the job. This isn’t a matter of speculation; it’s a virtual certainty.

In campaign speeches, TV interviews, posts on Truth Social, and a head-spinning list of promises posted on his official campaign website, Trump has vowed to pressure Congress to pass legislation imposing the death penalty on drug smugglers and human traffickers; purge “Marxists” from the Department of Education; remove civil service protections for federal employees; and “obliterate the deep state [and] rout the fake news media.” He has also pledged to fire Special Counsel Jack Smith, whom he has labeled “a deranged lunatic, [a] psycho, and a “crackhead,” and appoint “a real special prosecutor” to target President Biden and his family, along with a litany of other real and imagined enemies.

It would be bad enough if such threats were simply the ravings of a wannabe dictator desperate to stay out of jail, but they are much more dangerous than that. Trump’s 2024 election bid and his vows of revenge and retribution are backed by a sophisticated and multi-faceted movement that seeks to expand presidential power to unprecedented heights should he or another like-minded GOP extremist win back the Oval Office.

The intellectual heart of the movement is the Heritage Foundation, the well-known and influential Washington-D.C.-based think tank, founded in 1973, that played an integral role in shaping the policies of President Ronald Reagan. From its early days as a pivotal player in the mainstream of the Republican Party, the Heritage Foundation went full MAGA during Trump’s first term. Last year, it launched a new initiative—dubbed the “2025 Presidential Transition Project,” or “Project 2025” for short—to ensure that the next GOP President’s authority will be unchecked.

The project’s webpage describes its vision in ambitious and unambiguous terms:

The actions of liberal politicians in Washington have created a desperate need and unique opportunity for conservatives to start undoing the damage the Left has wrought and build a better country for all Americans in 2025.

It is not enough for conservatives to win elections. If we are going to rescue the country from the grip of the radical Left, we need both a governing agenda and the right people in place, ready to carry this agenda out on day one of the next conservative administration.

The specific goals of the project are discussed in great detail in the ninth edition of the Heritage Foundation’s Mandate for Leadership. First published in 1981, the Mandate is designed to serve as a guide for conservative governance, and is updated periodically, usually at the outset of each presidential administration. The current version totals some 920 pages.

If you lack the stomach to plow through the entire tome, you can turn to a two-page preface written by Paul Dans, Project 2025’s director who served as the Trump Administration’s Chief of Staff for the Office of Personnel Management.Dans outlines the project’s four basic objectives, which he calls its “four pillars.” These are: the development of a broad “policy agenda” for the next rightwing President to implement; the construction of a “personnel database” to assist the President in making staffing decisions; the creation of a “Presidential Academy” to train the next set of high-level government appointees; and a “Playbook” for the first 180 days of the next administration.

One of the project’s more disturbing aims is to bring all federal agencies under direct presidential control,ending the operational independence not only of the Department of Justice and the FBI, but also the Federal Reserve, which oversees the banking industry and regulates interest rates; the Federal Communications Commission (FCC), which oversees television, radio, and the Internet; and the Federal Trade Commission (FTC), which enforces antitrust and consumer protection laws.

“What we’re trying to do is identify the pockets of independence and seize them,” Russell Vought told The New York Times in an interview for a lengthy article published earlier this month on Trump’s plans for a second term. Vought ran the Office of Management and Budget for the Trump White House, and currently serves as the president of the Center for Renewing America, one of sixty-five ultra-right organizations that have come together to form Project 2025’s advisory board. (Others include the American Family Project, Hillsdale College, Liberty University, Susan B. Anthony Pro-life America, America First Legal, the Claremont Institute, Moms for Liberty, Freedom Works, the James Madison Institute, and ALEC.)

“The President’s plan should be to fundamentally reorient the federal government in a way that hasn’t been done since F.D.R.’s New Deal,” John McEntee, another former Trump White House staffer, also told the Times. “Our current executive branch,” McEntee continued, “was conceived of by liberals for the purpose of promulgating liberal policies. There is no way to make the existing structure function in a conservative manner. It’s not enough to get the personnel right. What’s necessary is a complete system overhaul.” McEntee joined Project 2025 in May as a senior advisor, working on the initiative’s “personnel” pillar.

Dismantling the New Deal-era regulatory framework of the administrative state, as McEntee advocates, has long been a goal of the radical right. The right has also long advocated a bloated view of presidential power known as the “unitary executive theory.” The doctrine was popularized in the early 1980s by Ed Meese, who served as counselor to the President in Reagan’s first term, and as attorney general in his second term, before assuming a full-time post with the Heritage Foundation in 1988. Bill Barr, Trump’s last Senate-confirmed Attorney General, is another prominent proponent of the theory.

In an oft-quoted 2006 essay, professors Karl Manheim and Allan Ides of Loyola Law School in Los Angeles, California, described the theory as inimical to the core tenets of democracy, writing:

[T]he theory of the unitary executive is anything but an innocuous or unremarkable description of the presidency. In its stronger versions, it embraces and promotes a notion of consolidated presidential power that essentially isolates the Executive Branch from any type of Congressional or judicial oversight… Its proponents seek the cover of the Constitution, but in truth their theory wreaks havoc on the most fundamental principles of our constitutional traditions.

In a recent column published online by MSNBC, New York University ProfessorRuth Ben-Ghiat, an internationally renowned expert on fascism, compared the programmatic goals of the Trump campaign and Project 2025 to the crippling anti-democratic reforms implemented by Hungarian Prime Minister Viktor Orbán.

The question for the rest of us, who see democracy teetering on the brink, is how to stop Trump and Project 2025. It is possible, but unlikely, that Special Counsel Jack Smith could derail Trump’s campaign through the multiple prosecutions he is pursuing. It is also possible, but by no means certain, that the Supreme Court, currently stacked with three Trump appointees, could overturn or weaken some aspects of a second-term Trump agenda if Smith fails.

The most effective way to stop Trump and the new movement behind him, however, is to defeat him at the polls, making sure that he never accedes to power again. Sadly, that, too, remains decidedly uncertain.

GOP senator blocking 265 military promotions falsely promoted his father’s WWII service: report

Smith Jan. 6 prosecution

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https://www.nytimes.com/2023/07/17/us/politics/trump-plans-2025.html

Donald J. Trump intends to bring independent regulatory agencies under direct presidential control.

Trump and Allies Forge Plans to Increase Presidential Power in 2025

The former president and his backers aim to strengthen the power of the White House and limit the independence of federal agencies.

Jonathan SwanCharlie Savage Maggie Haberman

By Jonathan Swan, Charlie Savage and Maggie Haberman

Published July 17, 2023

Updated July 18, 2023

Donald J. Trump and his allies are planning a sweeping expansion of presidential power over the machinery of government if voters return him to the White House in 2025, reshaping the structure of the executive branch to concentrate far greater authority directly in his hands.

Their plans to centralize more power in the Oval Office stretch far beyond the former president’s recent remarks that he would order a criminal investigation into his political rival, President Biden, signaling his intent to end the post-Watergate norm of Justice Department independence from White House political control.

Mr. Trump and his associates have a broader goal: to alter the balance of power by increasing the president’s authority over every part of the federal government that now operates, by either law or tradition, with any measure of independence from political interference by the White House, according to a review of his campaign policy proposals and interviews with people close to him.

Mr. Trump intends to bring independent agencies — like the Federal Communications Commission, which makes and enforces rules for television and internet companies, and the Federal Trade Commission, which enforces various antitrust and other consumer protection rules against businesses — under direct presidential control.

He wants to revive the practice of “impounding” funds, refusing to spend money Congress has appropriated for programs a president doesn’t like — a tactic that lawmakers banned under President Richard Nixon.

He intends to strip employment protections from tens of thousands of career civil servants, making it easier to replace them if they are deemed obstacles to his agenda. And he plans to scour the intelligence agencies, the State Department and the defense bureaucracies to remove officials he has vilified as “the sick political class that hates our country.”

“The president’s plan should be to fundamentally reorient the federal government in a way that hasn’t been done since F.D.R.’s New Deal,” said John McEntee, a former White House personnel chief who began Mr. Trump’s systematic attempt to sweep out officials deemed to be disloyal in 2020 and who is now involved in mapping out the new approach.

“Our current executive branch,” Mr. McEntee added, “was conceived of by liberals for the purpose of promulgating liberal policies. There is no way to make the existing structure function in a conservative manner. It’s not enough to get the personnel right. What’s necessary is a complete system overhaul.”

Mr. Trump and his advisers are making no secret of their intentions — proclaiming them in rallies and on his campaign website, describing them in white papers and openly discussing them.

“What we’re trying to do is identify the pockets of independence and seize them,” said Russell T. Vought, who ran the Office of Management and Budget in the Trump White House and now runs a policy organization, the Center for Renewing America.

The strategy in talking openly about such “paradigm-shifting ideas” before the election, Mr. Vought said, is to “plant a flag” — both to shift the debate and to later be able to claim a mandate. He said he was delighted to see few of Mr. Trump’s Republican primary rivals defend the norm of Justice Department independence after the former president openly attacked it.

A Divided Congress

[Under Scrutiny: A licensing agreement between Ford Motor and a major Chinese battery maker is facing questions by Republican lawmakers, who say the deal could make Ford reliant on a company with links to forced labor.

Air Travel: The House overwhelmingly passed bipartisan legislation to reauthorize the Federal Aviation Administration for the next half-decade, moving at a time of growing dysfunction and disruption in the system to make a number of changes that affect passengers.

Supreme Court Ethics Bill: The Senate Judiciary Committee approved legislation that would impose strict new ethics rules on the Supreme Court, moving over Republican objections to address revelations about justices receiving financial benefits from wealthy benefactors.

U.C. Berkeley: A House select committee is requesting more information about a partnership between the university and several Chinese entities that it said could help China gain access to cutting-edge research.]

Steven Cheung, a spokesman for Mr. Trump’s campaign, said in a statement that the former president has “laid out a bold and transparent agenda for his second term, something no other candidate has done.” He added, “Voters will know exactly how President Trump will supercharge the economy, bring down inflation, secure the border, protect communities and eradicate the deep state that works against Americans once and for all.”

The two driving forces of this effort to reshape the executive branch are Mr. Trump’s own campaign policy shop and a well-funded network of conservative groups, many of which are populated by former senior Trump administration officials who would most likely play key roles in any second term.

Mr. Vought and Mr. McEntee are involved in Project 2025, a $22 million presidential transition operation that is preparing policies, personnel lists and transition plans to recommend to any Republican who may win the 2024 election. The transition project, the scale of which is unprecedented in conservative politics, is led by the Heritage Foundation, a think tank that has shaped the personnel and policies of Republican administrations since the Reagan presidency.

That work at Heritage dovetails with plans on the Trump campaign website to expand presidential power that were drafted primarily by two of Mr. Trump’s advisers, Vincent Haley and Ross Worthington, with input from other advisers, including Stephen Miller, the architect of the former president’s hard-line immigration agenda.

Some elements of the plans had been floated when Mr. Trump was in office but were impeded by internal concerns that they would be unworkable and could lead to setbacks. And for some veterans of Mr. Trump’s turbulent White House who came to question his fitness for leadership, the prospect of removing guardrails and centralizing even greater power over government directly in his hands sounded like a recipe for mayhem.

“It would be chaotic,” said John F. Kelly, Mr. Trump’s second White House chief of staff. “It just simply would be chaotic, because he’d continually be trying to exceed his authority but the sycophants would go along with it. It would be a nonstop gunfight with the Congress and the courts.”

The agenda being pursued has deep roots in the decades-long effort by conservative legal thinkers to undercut what has become known as the administrative state — agencies that enact regulations aimed at keeping the air and water clean and food, drugs and consumer products safe, but that cut into business profits.

Its legal underpinning is a maximalist version of the so-called unitary executive theory.

The legal theory rejects the idea that the government is composed of three separate branches with overlapping powers to check and balance each other. Instead, the theory’s adherents argue that Article 2 of the Constitution gives the president complete control of the executive branch, so Congress cannot empower agency heads to make decisions or restrict the president’s ability to fire them. Reagan administration lawyers developed the theory as they sought to advance a deregulatory agenda.

“The notion of independent federal agencies or federal employees who don’t answer to the president violates the very foundation of our democratic republic,” said Kevin D. Roberts, the president of the Heritage Foundation, adding that the contributors to Project 2025 are committed to “dismantling this rogue administrative state.”

Personal power has always been a driving force for Mr. Trump. He often gestures toward it in a more simplistic manner, such as in 2019, when he declared to a cheering crowd, “I have an Article 2, where I have the right todo whatever I wantas president.”

Mr. Trump made the remark in reference to his claimed ability to directly fire Robert S. Mueller III, the special counsel in the Russia inquiry, which primed his hostility toward law enforcement and intelligence agencies. He also tried to get a subordinate to have Mr. Mueller ousted, but was defied.

Early in Mr. Trump’s presidency, his chief strategist, Stephen K. Bannon, promised a “deconstruction of the administrative state.”But Mr. Trump installed people in other key roles who ended up telling him that more radical ideas were unworkable or illegal. In the final year of his presidency, he told aides he was fed up with being constrained by subordinates.

Now, Mr. Trump is laying out a far more expansive vision of power in any second term. And, in contrast with his disorganized transition after his surprise 2016 victory, he now benefits from a well-funded policymaking infrastructure, led by former officials who did not break with him after his attempts to overturn the 2020 election and the Jan. 6, 2021, attack on the Capitol.

One idea the people around Mr. Trump have developed centers on bringing independent agencies under his thumb.

Congress created these specialized technocratic agencies inside the executive branch and delegated to them some of its power to make rules for society. But it did so on the condition that it was not simply handing off that power to presidents to wield like kings — putting commissioners atop them whom presidents appoint but generally cannot fire before their terms end, while using its control of their budgets to keep them partly accountable to lawmakers as well. (Agency actions are also subject to court review.)

Presidents of both parties have chafed at the agencies’ independence. President Franklin D. Roosevelt, whose New Deal created many of them, endorsed a proposal in 1937 to fold them all into cabinet departments under his control, but Congress did not enact it.

Later presidents sought to impose greater control over nonindependent agencies Congress created, like the Environmental Protection Agency, which is run by an administrator whom a president can remove at will. For example, President Ronald Reagan issued executive orders requiring nonindependent agencies to submit proposed regulations to the White House for review. But overall, presidents have largely left the independent agencies alone.

Mr. Trump’s allies are preparing to change that, drafting an executive order requiring independent agencies to submit actions to the White House for review.Mr. Trump endorsed the idea on his campaign website, vowing to bring them “under presidential authority.”

Such an order was drafted in Mr. Trump’s first term — and blessed by the Justice Department — but never issued amid internal concerns. Some of the concerns were over how to carry out reviews for agencies that are headed by multiple commissioners and subject to administrative procedures and open-meetings laws, as well as over how the market would react if the order chipped away at the Federal Reserve’s independence, people familiar with the matter said.

The former president views the civil service as a den of “deep staters” who were trying to thwart him at every turn in the White House.Credit...John Tully for The New York Times

The Federal Reserve was ultimately exempted in the draft executive order, but Mr. Trump did not sign it before his presidency ended. If Mr. Trump and his allies get another shot at power, the independence of the Federal Reserve — an institution Mr. Trump publicly railed at as president — could be up for debate. Notably, the Trump campaign website’s discussion of bringing independent agencies under presidential control is silent on whether that includes the Fed.

Asked whether presidents should be able to order interest rates lowered before elections, even if experts think that would hurt the long-term health of the economy, Mr. Vought said that would have to be worked out with Congress. But “at the bare minimum,” he said, the Federal Reserve’s regulatory functions should be subject to White House review.

“It’s very hard to square the Fed’s independence with the Constitution,” Mr. Vought said.

Other former Trump administration officials involved in the planning said there would also probably be a legal challenge to the limits on a president’s power to fire heads of independent agencies. Mr. Trump could remove an agency head, teeing up the question for the Supreme Court.

The Supreme Court in 1935 and 1988 upheld the power of Congress to shield some executive branch officials from being fired without cause. But after justices appointed by Republicans since Reagan took control, it has started to erode those precedents.

Peter L. Strauss, professor emeritus of law at Columbia University and a critic of the strong version of the unitary executive theory, argued that it is constitutional and desirable for Congress, in creating and empowering an agency to perform some task, to also include some checks on the president’s control over officials “because we don’t want autocracy” and to prevent abuses.

“The regrettable fact is that the judiciary at the moment seems inclined to recognize that the president does have this kind of authority,” he said. “They are clawing away agency independence in ways that I find quite unfortunate and disrespectful of congressional choice.”

Mr. Trump has also vowed to impound funds, or refuse to spend money appropriated by Congress. After Nixon used the practice to aggressively block agency spending he was opposed to, on water pollution control, housing construction and other issues, Congress banned the tactic.

On his campaign website, Mr. Trump declared that presidents have a constitutional right to impound funds and said he would restore the practice — though he acknowledged it could result in a legal battle.

Mr. Trump and his allies also want to transform the civil service — government employees who are supposed to be nonpartisan professionals and experts with protections against being fired for political reasons.

The former president views the civil service as a den of “deep staters” who were trying to thwart him at every turn, including by raising legal or pragmatic objections to his immigration policies, among many other examples. Toward the end of his term, his aides drafted an executive order, “CreatingSchedule F in the Excepted Service,” that removed employment protections from career officials whose jobs were deemed linked to policymaking.

Mr. Trump signed the order, which became known as Schedule F, near the end of his presidency, but President Biden rescinded it. Mr. Trump has vowed to immediately reinstitute it in a second term.

Critics say he could use it for a partisan purge. But James Sherk, a former Trump administration official who came up with the idea and now works at the America First Policy Institute — a think tank stocked heavily with former Trump officials — argued it would only be used against poor performers and people who actively impeded the elected president’s agenda.

“Schedule F expressly forbids hiring or firing based on political loyalty,” Mr. Sherk said. “Schedule F employees would keep their jobs if they served effectively and impartially.”

Mr. Trump himself has characterized his intentions rather differently — promising on his campaign website to “find and remove the radicals who have infiltrated the federal Department of Education” and listing a litany of targets at a rally last month.

“We will demolish the deep state,” Mr. Trump said at the rally in Michigan. “We will expel the warmongers from our government. We will drive outthe globalists. We will cast out the communists, Marxists and fascists. And we will throw off thesick political class that hates our country.”

[Jonathan Swan is a political reporter who focuses on campaigns and Congress. As a reporter for Axios, he won an Emmy Award for his 2020 interview of then-President Donald J. Trump, and the White House Correspondents’ Association’s Aldo Beckman Award for “overall excellence in White House coverage” in 2022. More about Jonathan Swan

Charlie Savage is a Washington-based national security and legal policy correspondent. A recipient of the Pulitzer Prize, he previously worked at The Boston Globe and The Miami Herald. His most recent book is “Power Wars: The Relentless Rise of Presidential Authority and Secrecy.” More about Charlie Savage

Maggie Haberman is a senior political correspondent and the author of “Confidence Man: The Making of Donald Trump and the Breaking of America.” She was part of a team that won a Pulitzer Prize in 2018 for reporting on President Trump’s advisers and their connections to Russia. More about Maggie Haberman

A version of this article appears in print on July 17, 2023, Section A, Page 1 of the New York edition with the headline: Trump and Allies Seeking Vast Increase of His Power. Order Reprints | Today’s Paper | Subscribe

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https://www.govinfo.gov/content/pkg/GPO-PLUMBOOK-2020/pdf/GPO-PLUMBOOK-2020.pdf

[The Heritage Foundation's] Project 2025 has launched an online questionnaire, asking would-be conservative wonks in a Republican to explain their political philosophy, who influenced it, and asking them a series ofquestions, including whether the United Nations should have authority over sovereign countries, and whether the U.S. president "should be able to advance his/her agenda through the bureaucracy without hinderance [sic] from unelected federal officials."

https://slate.com/news-and-politics/2021/05/biden-trump-severino-trap.html

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Biden’s Justice Department Is Walking Into a Trap Set by Trump Appointees

A seemingly frivolous lawsuit could take down a pillar of the administrative state.

BY MARK JOSEPH STERN

MAY 28, 2021

From the day he assumed the presidency, Joe Biden has aggressively removed Donald Trump’s appointees from the executive branch to prevent them from sabotaging his administration. Biden’s termination of high-profile Trump holdovers, like the union-busting Peter Robb, has attracted the most attention. But the president has also fired holdovers who tried to “burrow in” to obscure agencies, many of whom were installed in the final weeks of Trump’s term. One such holdover, Roger Severino, promptly sued Biden after the president removed him and three fellow Trump appointees from theAdministrative Conference of the United States.

On the surface, Severino’s lawsuit is absurd. But he and his allies may know that. It appears that they have a grander plan: to destroy the very foundation of agency independence, giving the president power to fire any member of any agency—even those that Congress tried to shield from his control—permitting a future president to stack the entire executive branch with his own lackeys. That outcome would constitute a major blow to the modern administrative state. And bizarrely, Biden’s Department of Justice may be walking straight into the trap that Severino set for it.

Most Americans have not heard of ACUS, but the agency has considerable influence over federal regulations. Its council, a kind of board of directors, is made up of one chair and 10 other members appointed by the president. Only the chair must receive Senate confirmation; the other members do not. ACUS makes recommendations to improve the regulatory process across the federal government. Under Trump’s appointees, it laundered conservative anti-regulatory ideas approved by industry groups and Federalist Society leaders through the agency, giving them a false nonpartisan sheen.

It is no surprise, then, that Biden fired four of Trump’s ACUS holdovers. The termination of Severino, in particular, was predictable: A longtime anti-LGBTQ activist, Severino also worked in Trump’s Department of Health of Human Servicestrying (and failing) to legalize discrimination against LGBTQ patients. Trump first appointed Severino to ACUS in August 2020, then reappointed him on Jan. 16, 2021—a bid to burrow in Severino by restarting his three-year term just before Biden took office.

A series of clues indicate that Severino might have an ulterior motive.

Biden foiled this plan by firing Severino and three of his Trump-appointed colleagues in early February. Severino responded with a lawsuit alleging that his termination was illegal. That accusation is curious coming from a Federalist Society figure like Severino. The conservative legal movement has long supported the president’s constitutional authority to fire members of federal agencies. Under their theory of the “unitary executive,” the president may remove agency leaders at any time, for any reason. This theory casts doubt on the legitimacy of “independent agencies,” like the Federal Trade Commission, whose members can only be removed for cause, not at the president’s discretion.

In 1935’s Humphrey’s Executor, the Supreme Court unanimously affirmed the constitutionality of independent agencies. But that precedent has been on conservative lawyers’ hit list for decades. If the Supreme Court overturns Humphrey’s and adopts the unitary executive theory, then many powerful agencies that have traditionally operated independently from the president—including the Federal Reserve and the Securities and Exchange Commission—would become mere outposts of the White House. The president could fire their leaders and replace them with cronies who will obey his orders. (Progressives tend to support Humphrey’s because it promotes less political decision-making and protects experts from partisan pressure.)

Severino’s lawsuit, which contradicts a foundational pillar of conservative legal thought, thus raises a red flag.It seems unlikely that Severino simply wants his ACUS job back, which is, after all, a part-time, unpaid position. In response to Slate’s request for comment, Severino—who now serves as a senior fellow at the Ethics and Public Policy Center directing its HHS Accountability Project—declined to say whether he intended to take down Humphrey’s. Instead, he gave four other reasons behind the suit. “I want to continue making valuable contributions to ACUS, the rules governing appointments should be consistent regardless of who is in power, current case law is on my side, and I refuse to be bullied by the President,” Severino told Slate.

A series of clues, however, indicate that Severino might have another motive: not getting his job back, but obliterating agency independence and enshrining the unitary executive theory into law. Severino is represented by Jonathan Mitchell, a conservative attorney famous for his union-busting litigation. Trump nominated Mitchell to chair ACUS, but the Senate never confirmed him. Given his deep ties to the legal campaign against independent agencies, Mitchell is the perfect candidate for an assault on Humphrey’s using ACUS as a vehicle.

Moreover, statements by Andrew Kloster, a Trump appointee to ACUS whom Biden fired along with Severino, point to a scheme designed to take down Humphrey’s. Public record requests reveal that when the White House requested Kloster’s resignation, he refused in a lengthy email warning of “legal headaches” to come. When the White House fired him, Kloster urged ACUS to deny the legality of the termination, demanding that his name remain on the official website. He immediately compared himself to a member of the FTC, the agency at issue in Humphrey’s. That same day, Kloster tweeted that “ramming Humphrey’s Executor” with “the unitary executive” was “the plan.” Similarly, Ed Whelan—who now works with Severino at the Ethics and Public Policy Center—wrote that his colleague’s lawsuit may lead to the reversal of Humphrey’s.

If “ramming” Humphrey’s is, indeed, the plan, then it is a terrible one. The fundamental problem for Severino is that ACUS is not an independent agency. Congress did not shield its members with for-cause removal protections. No law limits the president’s authority to remove them. Its members (aside from the chair) are not even confirmed by the Senate—unlike the leaders at true independent agencies, who are Senate-confirmed. And ACUS does not exercise the kind of regulatory or adjudication authority that often merits independence in the eyes of Congress. To the contrary, it exists to advise the president on executive branch affairs; it would make no sense to prevent him from removing his own advisers.

In its response to Severino’s lawsuit, filed on May 4, the Department of Justice eventually makes all these points to defend Biden’s actions. But it does not foreground them. Instead, the DOJ leads with a sweeping argument that strikes at the heart of agency independence. It argues that, due to the constitutional separation of powers, the federal judiciary lacks authority to issue “injunctive or declaratory relief” against the president.Put differently, the argument is that a federal court has no power to make the president reinstate a fired agency member. Under this theory, if a president illegally fired an FTC commissioner, for instance, no court could order him to give the commissioner their job back. The court could order back pay but couldn’t restore their employment.

This theory, if true, would end agency independence. A president could clear house at every independent agency, purging members without good cause, and no one could stop him. The sacked commissioners could sue for damages but not reinstatement. If the Supreme Court accepted this idea, it wouldn’t even have to overturn Humphrey’s. Independent agencies could remain on the books, but in reality, nothing would prevent a president from firing members he did not like.

Ronald J. Krotoszynski, an administrative law professor at the University of Alabama School of Law, told me that the DOJ’s theory “seems bogus to me.” Krotoszynski pointed out that if Severino’s removal violated the law, “his removal was without legal effect, void, and a court order should be sufficient to reinstate him to the ACUS governing council for the balance of his term of office.” He also noted that, in the landmark 1803 Supreme Court decision Marbury v. Madison, Chief Justice John Marshall held that a federal judge could order Secretary of State James Madison to deliver a judge’s commission. Marshall wrote that a writ of mandamus—a court order compelling an official to perform a legal duty—would be appropriate against Madison.

In light of Marbury, Krotoszynski speculated that a court could issue a writ of mandamus “against the president directly.” This order would compel the president to reinstate a fired agency member. But, Krotoszynski said, “that seems rather awkward and completely unnecessary.” Instead, a court could order the staff members at the Office of Presidential Personnel—who send out the actual pink slip—to acknowledge the member’s right to continue service. (The DOJ argues that a court order against the president’s staff is “tantamount to issuing relief directly against the President.”)

Krotoszynski’s argument is persuasive but contestable. In a 1997 law review article, Tracey A. Hardin examined this issue and arrived at the same conclusion as Biden’s Justice Department: The Constitution does not allow a federal court to order the reinstatement of an independent agency commissioner who was fired illegally. (Ironically, Tracey is now the assistant general counsel at SEC, an independent agency.) And the Supreme Court’s current conservative supermajority is extremely hostile to agency independence. It is all too easy to envision the conservative justices agreeing with the Justice Department, carving a huge loophole in Humphrey’s without risking the backlash of overturning it outright.

Which raises the question: Why is Biden’s Justice Department making this argument at all? It has a slam-dunk case against Severino on the merits; why try to duck the litigation with a far-reaching argument that could imperil independent agencies, which progressives and Democrats tend to support? The Biden administration may be walking straight into a trap that Severino and his allies set for it. It may only be spared by the feeble nature of the trap itself. New York University School of Law professor Sally Katzen, a senior fellow with ACUS who previously served as acting chair of the agency, told me she doubted the Supreme Court would seize upon this case to kill agency independence.

“It’s a plausible scary scenario,” Katzen says, “but I don’t see them going that far. ACUS is not a traditional independent regulatory commission. It has no authority to issue binding regulations nor does it have any enforcement powers.” If Severino and his allies wanted the Supreme Court to overturn Humphrey’s, “they should’ve picked a bigger fish. ACUS is a tiny little minnow—but a lovable minnow—in the world of administrative agencies.”

Severino, in other words, appears destined to lose this lawsuit one way or another. Through its own unforced error, however, the Biden administration has made it more likely that he will take down independent agencies with him.

post indictment, oddly the cure for tyranny is more tyranny? (or OUR GOP tyranny)

Jeffrey Clark, Former DOJ Official Implicated in Attempts to Overturn 2020 Election, Now Has Put Forward Maximalist ...

Quite the theory, and quite ironic from the team that insists the Biden DOJ has politicized the indictment of trump. Share this:.

.1 day ago

The Radical Strategy Behind Trump’s Promise to ‘Go After’ Biden

Conservatives with close ties to Donald J. Trump are laying out a “paradigm-shifting” legal rationale to erase the Justice Department’s independence from the president.

Donald Trump stands on a stage and points. He is in front of large white columns outside his golf club and an American flag is on the stage.

“I will totally obliterate the Deep State,” Donald Trump said on Tuesday evening at an event at his club in Bedminster, N.J., hours after his arraignment on federal charges.Credit...Doug Mills/The New York Times

By Jonathan Swan, Charlie Savage and Maggie Haberman

June 15, 2023

When Donald J. Trump responded to his latest indictment by promising to appoint a special prosecutor if he’s re-elected to “go after” President Biden and his family, he signaled that a second Trump term would fully jettison the post-Watergate norm of Justice Department independence.

“I will appoint a real special prosecutor to go after the most corrupt president in the history of the United States of America, Joe Biden, and the entire Biden crime family,” Mr. Trump said at his golf club in Bedminster, N.J., on Tuesday night after his arraignment earlier that day in Miami. “I will totally obliterate the Deep State.”

Mr. Trump’s message was that the Justice Department charged him only because he is Mr. Biden’s political opponent, so he would invert that supposed politicization. In reality, under Attorney General Merrick Garland, two Trump-appointed prosecutors are already investigating Mr. Biden’s handling of classified documents and the financial dealings of his son, Hunter.

But by suggesting the current prosecutors investigating the Bidens were not “real,” Mr. Trump appeared to be promising his supporters that he would appoint an ally who would bring charges against his political enemies regardless of the facts.

The naked politics infusing Mr. Trump’s headline-generating threat underscored something significant. In his first term, Mr. Trump gradually ramped up pressure on the Justice Department, eroding its traditional independence from White House political control. He is now unabashedly saying he will throw that effort into overdrive if he returns to power.

Mr. Trump’s promise fits into a larger movement on the right to gut the F.B.I., overhaul a Justice Department conservatives claim has been “weaponized” against them and abandon the norm — which many Republicans view as a facade — that the department should operate independently from the president.

Two of the most important figures in this effort work at the same Washington-based organization, the Center for Renewing America: Jeffrey B. Clark and Russell T. Vought. During the Trump presidency, Mr. Vought served as the director of the Office of Management and Budget. Mr. Clark, who oversaw the Justice Department’s civil and environmental divisions, was the only senior official at the department who tried to help Mr. Trump overturn the 2020 election.

Jeffrey B. Clark was the only senior official in the Justice Department who tried to help Mr. Trump overturn the 2020 election.Credit...Kenny Holston/The New York Times

Image

Along with Mr. Clark, Russell T. Vought argues that presidents should treat the Justice Department no differently than any other cabinet agency.

Mr. Trump wanted to make Mr. Clark attorney general during his final days in office but stopped after the senior leadership of the Justice Department threatened to resign en masse. Mr. Clark is now a figure in one of the Justice Department’s investigations into Mr. Trump’s attempts to stay in power.

Mr. Clark and Mr. Vought are promoting a legal rationale that would fundamentally change the way presidents interact with the Justice Department. They argue that U.S. presidents should not keep federal law enforcement at arm’s length but instead should treat the Justice Department no differently than any other cabinet agency. They are condemning Mr. Biden and Democrats for what they claim is the politicization of the justice system, but at the same time pushing an intellectual framework that a future Republican president might use to justify directing individual law enforcement investigations.

[Takeaways From Trump’s Indictment in the Documents Case

Card 1 of 8

New revelations. The 49-page indictment against Donald Trump and a personal aide, Walt Nauta, revealed a host of potentially devastating new details in the Justice Department’s inquiry into the former president’s mishandling of classified documents. Here are some of the most significant allegations:

There was a stunning pattern of obstruction. Prosecutors say Trump willfully ignored a May 2022 subpoena requiring him to return the documents — and took extraordinary steps to obstruct investigators. The indictment details how Nauta, at Trump’s direction, moved 64 boxes of documents so that Trump’s lawyer could not find them.

Boxes of documents were stored in a bathroom. In April 2021, Trump’s employees needed to move dozens of boxes from a ballroom at his Mar-a-Lago estate. “There is still a little room in the shower where his other stuff is,” one aide texted another. The boxes were hauled to a small bathroom and piled up nearly to the tiny chandelier next to the toilet.

Documents were stored sloppily. The indictment shows a picture of a box of top secret national security documents that in 2021 had spilled onto the floor of a Mar-a-Lago storage room accessible to many of the resort’s employees.

Trump made a “plucking motion.” The indictment recounts how Trump and his lawyer discussed what to do with a folder of 38 documents with classification markings. The lawyer said Trump made a “plucking motion” that implied, “why don’t you take them with you to your hotel room and if there’s anything really bad in there, like, you know, pluck it out.”

Trump was recorded sharing secrets. The indictment says Trump was recorded at his golf club in Bedminster, N.J., showing off secret U.S. battle plans to a writer. Trump described the material as “highly confidential” and “secret,” while admitting it had not been declassified.

Trump showed a secret map to a staff member. In August or September 2021, Trump shared a top secret military map with a staff member at his political action committee who did not have a security clearance; he warned the person not to “get too close.”

One of Trump’s lawyers is a key witness. Some of the most potentially damning evidence against the former president came from notes made by one of his lawyers, M. Evan Corcoran. The lawyer’s notes essentially gave prosecutors a road map to building their case.]]

Mr. Clark, who is a favorite of Mr. Trump’s and is likely to be in contention for a senior Justice Department position if Mr. Trump wins re-election in 2024, wrote a constitutional analysis, titled “The U.S. Justice Department is not independent,” that will most likely serve as a blueprint for a second Trump administration.

Like other conservatives, Mr. Clark adheres to the so-called unitary executive theory, which holds that the president of the United States has the power to directly control the entire federal bureaucracy and Congress cannot fracture that control by giving some officials independent decision-making authority.

There are debates among conservatives about how far to push that doctrine — and whether some agencies should be allowed to operate independently — but Mr. Clark takes a maximalist view. Mr. Trump does, too, though he’s never been caught reading the Federalist Papers.

In statements to The New York Times, both Mr. Clark and Mr. Vought leaned into their battle against the Justice Department, with Mr. Clark framing it as a fight over the survival of America itself.

Conservatives have been attacking President Biden and the Justice Department, claiming it has been “weaponized.”Credit...Doug Mills/The New York Times

“Biden and D.O.J. are baying for Trump’s blood so they can put fear into America,” Mr. Clark wrote in his statement. “The Constitution and our Article IV ‘Republican Form of Government’ cannot survive like this.”

Mr. Vought wrote in his statement that the Justice Department was “ground zero for the weaponization of the government against the American people.” He added, “Conservatives are waking up to the fact that federal law enforcement is weaponized against them and as a result are embracing paradigm-shifting policies to reverse that trend.”

Mr. Trump often exploited gaps between what the rules technically allow and the norms of self-restraint that guided past presidents of both parties. In 2021, House Democrats passed the Protecting Our Democracy Act, a legislative package intended to codify numerous previous norms as law, including requiring the Justice Department to give Congress logs of its contacts with White House officials. But Republicans portrayed the bill as an attack on Mr. Trump and it died in the Senate.

The modern era for the Justice Department traces back to the Watergate scandal and the period of government reforms that followed President Richard M. Nixon’s abuses. The norm took root that the president can set broad policies for the Justice Department — directing it to put greater resources and emphasis on particular types of crimes or adopting certain positions before the Supreme Court — but should not get involved in specific criminal case decisions absent extraordinary circumstances, such as if a case has foreign policy implications.

Since then, it has become routine at confirmation hearings for attorney general nominees to have senators elicit promises that they will resist any effort by the president to politicize law enforcement by intruding on matters of prosecutorial judgment and discretion.

As the Republican Party has morphed in response to Mr. Trump’s influence, his attacks on federal law enforcement — which trace back to the early Russia investigation in 2017, the backlash to his firing of then-F.B.I. director James B. Comey Jr. and the appointment of Robert S. Mueller III as special counsel — have become enmeshed in the ideology of his supporters.

Mr. Trump’s top rival for the Republican nomination, Gov. Ron DeSantis of Florida, also rejects the norm that the Justice Department should be independent.

Gov. Ron DeSantis has likewise argued that the Justice Department should be an extension of the executive branch.Credit...Kate Medley for The New York Times

“Republican presidents have accepted the canard that the D.O.J. and F.B.I. are — quote — ‘independent,’” Mr. DeSantis said in May on Fox News. “They are not independent agencies. They are part of the executive branch. They answer to the elected president of the United States.”

Several other Republican candidates acknowledged that Mr. Trump’s handling of classified documents — as outlined in the indictment prepared by the special counsel, Jack Smith, and his team — was a serious problem. But even these candidates — including Senator Tim Scott of South Carolina, the former United Nations ambassador Nikki Haley, and former Vice President Mike Pence — have also accused the Justice Department of being overly politicized and meting out unequal justice.

The most powerful conservative think tanks are working on plans that would go far beyond “reforming” the F.B.I., even though its Senate-confirmed directors in the modern era have all been Republicans. They want to rip it up and start again.

“The F.B.I. has become a political weapon for the ruling elite rather than an impartial, law-enforcement agency,” said Kevin D. Roberts, the president of the Heritage Foundation, a mainstay of the conservative movement since the Reagan years. He added, “Small-ball reforms that increase accountability within the F.B.I. fail to meet the moment. The F.B.I. must be rebuilt from the ground up — reforming it in its current state is impossible.”

Conservative media channels and social media influencers have been hammering the F.B.I. and the Justice Department for months since the F.B.I. search of Mar-a-Lago, following a playbook they honed while defending Mr. Trump during the investigation into whether his campaign conspired with the Russian government to influence the 2016 election.

Senator Tim Scott is among the other Republican presidential candidates who say the Justice Department is politicized.Credit...Travis Dove for The New York Times

On its most-watched nighttime programs, Fox News has been all-in on attacks against the Justice Department, including the accusation, presented without evidence, that Mr. Biden had directed the prosecution of Mr. Trump. As the former president addressed his supporters on Tuesday night at his Bedminster club, Fox News displayed a split screen — Mr. Trump on the right and Mr. Biden on the left. The chyron on the bottom of the screen read: “Wannabe dictator speaks at the White House after having his political rival arrested.”

As president, Mr. Trump saw his attorney general as simply another one of his personal lawyers. He was infuriated when his first attorney general, Jeff Sessions, recused himself from the Russia investigation — and then refused to reverse that decision to shut down the case.

After firing Mr. Sessions, Mr. Trump believed he had found someone who would do his bidding in William P. Barr, who had been in the role during George H.W. Bush’s presidency. Mr. Barr had an expansive view of a president’s constitutionally prescribed powers, and shared Mr. Trump’s critical views of the origins of the Russia investigation.

Under Mr. Barr, the Justice Department overruled career prosecutors’ recommendations on the length of a sentence for Mr. Trump’s longest-serving political adviser, Roger J. Stone Jr., and sought to shut down a case against Mr. Trump’s first national security adviser, Michael Flynn, who had already pleaded guilty. Both cases stemmed from the Russia investigation.

But when Mr. Trump wanted to use the Justice Department to stay in power after he lost the election, he grew enraged when Mr. Barr refused to comply. Mr. Barr ultimately resigned in late 2020.

Jonathan Swan is a political reporter who focuses on campaigns and Congress. As a reporter for Axios, he won an Emmy Award for his 2020 interview of then-President Donald J. Trump, and the White House Correspondents’ Association’s Aldo Beckman Award for “overall excellence in White House coverage” in 2022. @jonathanvswan

Maggie Haberman is a senior political correspondent and the author of “Confidence Man: The Making of Donald Trump and the Breaking of America.” She was part of a team that won a Pulitzer Prize in 2018 for reporting on President Trump’s advisers and their connections to Russia. @maggieNYT

A version of this article appears in print on June 16, 2023, Section A, Page 1 of the New York edition with the headline: Trump Allies Plan to Stifle Justice Dept.. Order Reprints | Today’s Paper | Subscribe

OMFG

WEAPONIZE OMB, UNITARY?

mma 7 22

https://www.mediamatters.org/january-6-insurrection/center-renewing-america-preparing-next-republican-administration-govern

over the last several years, the United States has seen a dramatic rise in Christian nationalism, a loosely defined ideology that fuses patriarchy, xenophobia, and pretextual economic populism with an overtly biblical foundation and a deep distrust of democracy. This phenomenon has manifested in many ways, but one of the organizations driving the trend is a far-right think tank called the Center for Renewing America.

Several former Trump administration officials are associated with the group, including its president, Russ Vought, who served as director of the Office of Management and Budget under Trump. Vought led the administration’s efforts to demonize critical race theory, including removing anti-racism training from federal agencies. He is a regular guest on Steve Bannon’s podcast War Room: Pandemic and on Fox News. His organization is one of several far-right groups under the umbrella of the Conservative Partnership Institute, whose top officials include former Trump chief of staff Mark Meadows and right-wing legal activist Cleta Mitchell.Both Meadows and Mitchell were intimately involved in Trump’s attempted insurrection, as were at least 18 other people associated with CPI, including CRA senior fellow Kash Patel, former Trump Pentagon official.

Perhaps the most significant of Trump’s top coup allies is CRA senior fellow Jeffrey Clark,a former environmental lawyer at the Department of Justice who was hired by the think tank in June. About three weeks later, Clark was targeted in a raid by federal law enforcement. Little is publicly known about the investigation into Clark, but it may revolve around his proposal “to send a letter to state officials in Georgia falsely stating that the department had evidence that could lead Georgia to rescind its certification of Mr. Biden’s victory in that key swing state,” according to The New York Times.

CRA works on an array of disparate, seemingly unrelated issues. In addition to CRA-linked individuals’ considerable efforts to justify the January 6 insurrection, the organization has sown doubt about future “election integrity.” Vought has remained at the heart of the anti-critical race theory push even after he left OMB. He is virulently anti-trans, calling trans identity a “contagion” in a 2021 podcast, and CRA has supported anti-trans legislation and opposed laws that would ban discrimination based on sexual and gender identity. Senior fellow and immigration restrictionistKen Cuccinelli and Vought successfully lobbied counties in Texas to declare that they were under “invasion” by migrants. CRA is also an active participant in the conservative legal community, as exemplified by its senior fellowMark Paoletta,who prepared Justices Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas for their confirmation hearings. Following the overturning of Roe v. Wade, Vought celebrated Paoletta’s central role in the court’s rightward shift.

What unites these issues is what Vought refers to as a “biblical worldview,” a concept that has long been prevalent on the religious right and refers to an all-encompassing ideology derived from a conservative interpretation of the Bible. Although Vought eschews the aesthetics of some of the street-fighting Christian fascists who terrorized Pride events in June, he overtly believes the United States should be a Christian nation. CRA’s mission is to “renew a consensus of America as a nation under God.” Vought is signatory to a national conservative statement affirming that “the Bible should be read as the first among the sources of a shared Western civilization in schools and universities.” Most revealingly, in 2021 Vought wrote an opinion piece for Newsweek with the headline: “Is There Anything Actually Wrong With 'Christian Nationalism?'

Vought argues that, no, there’s nothing wrong with Christian nationalism, so long as it’s defined in a circumscribed, non-threatening way.

“Once stripped of its superimposed liberal scar tissue, ‘Christian nationalism’ is actually a rather benign and useful description for those who believe in both preserving our country's Judeo-Christian heritage and making public policy decisions that are best for this country,” Vought writes.

This is a fig leaf. Christian nationalism as it actually operates — sometimes taking the modifier “white” at the beginning — endorses the racist “great replacement theory,” which posits that global elites are fueling non-white immigration to the United States to “replace” white people. The conspiracy theory holds that this upending of power relations will be done through demographic changes, and at the ballot box — which helps to explain CRA’s obsession with “secure borders” and “election integrity.”

For Vought, CRA’s issues of focus are not discrete policy battles. As he made clear recently on a right-wing podcast, he believes the country is in a Manichean war between the forces of good and evil. The battleground is so-called cultural issues, which, properly understood, are liberation movements to end racist and patriarchal oppression, but for Vought they must be opposed at every step of the way.

“These are the issues that if we don’t fight on we lose our civilization,” Vought said. “Critical race theory has to be front and center. Transgender contagion in our schools, impacting our daughters across the country, needs to be a front and center issue."

moment of truth pod]

vought wants to create an “army” of activists ready and waiting to serve in government who can be trusted to carry out a Christian nationalist agenda. And as former director of OMB, Vought has a unique insight into how to implement a whole-of-government approach to enacting a presidential directive, which is what he did with Trump’s initiative against so-called “critical race theory.”

“When the president says, ‘I want to not fund critical race theory through the federal government,’ that’s involving all of the agencies, and we have to then make sure that the president’s agenda is executed,” Vought said in the same interview [aud]

more broadly, Vought lamented that not enough religious right activists “operate on the basis of worldview.” As a result, less dogmatic “elite Christians” have adopted ideologies that “lack clarity at best” and are “damaging at worst.” Vought wants hardliners in the church and in the public sphere. In the context of running the government, that means replacing career staff with “ideologically committed individuals up and down the agencies.”

That idea aligns with the upcoming plans from the Manhattan Institute’s Christopher Rufo, who, along with Vought and CRA, spearheaded the broader backlash against critical race theory. As Rufo said in a recent interview:

As we approach 2024, I will be publishing a policy paper on “eliminating left-wing ideologies in the federal government,”using the power of the presidency to fundamentally reshape the bureaucracywith a six-part program targeting budget, content, personnel, grantmaking, and oversight. The idea is to centralize ideological control over the federal agencies in the White House andcreate a team at the Office of Management and Budget to enforce it.We could easily wipe out a significant portion of the infrastructure for the left-wing ideologies within the federal bureaucracyand within the network of federal grantees and contractors, which would shift American politics in the right direction.

These plans are not theoretical. CRA is one of many hard-right organizations involved in the Heritage Foundation’s 2025 Presidential Transition Project, a coalition of zealots determined to avoid some of the shortcomings and incompetencies of the Trump administration. (Vought is a former vice president of the organization’s grassroot and advocacy arm, Heritage Action for America.)

Vought has made no secret of what he would do if given the opportunity to serve as a Cabinet-level appointee in a Republican administration. He would attempt to eliminate or drastically curtail the Environmental Protection Agency, the Centers for Disease Control and Prevention, the National Institutes of Health, and others.

“We got to get after these agencies we talked about before, the administrative state, bigmoney, EPA, CDC, [and] NIH that's weaponized against the American people and we need to put them on the chopping block before we get to some other things down the road,” Vought said on Steve Bannon’s War Room.

A subsequent Supreme Court decision that drastically limited the EPA’s ability to regulate carbon emissions would likely serve as a template for Vought to dismantle broad swaths of the executive branch’s regulatory authority.

Vought’s antagonism toward the regulatory state extends to aspects of federal law enforcement, but only when those agencies are investigating conservatives for attempting to overturn the results of the 2020 election. Right-wing podcaster Charlie Kirk asked Vought about the Department of Justice’s supposed persecution of conservatives, including his colleague Jeffrey Clark, and how he thought it should be addressed. The long-term plan is to structurally change it,” Vought said. “We've got to deconstruct the state that is weaponized against the American people.”

Like other organizations that have sprung up to harness Trumpism in the last several years, CRA’s broad influence remains limited. But its success in promoting the backlash against critical race theory shows it shouldn’t be underestimated, even though that topic may not have had the electoral influence Vought and others have claimed. What’s undeniable is that Vought and his fellow travelers have sweeping ambitions and the zeal of a true believer. They are telling us exactly what they are going to do if they return to power at the federal level, and it is a chilling vision of theocracy and repression.

vid Citation From the June 27, 2022, edition of Real America's Voice's The Charlie Kirk Show

https://www.alternet.org/2021/01/trump-nixon/

an 121 salon

Americans were shocked to watch as American stormtroopers assaulted the U. S. capitol building, smashing windows, roaming through the building and the floors of both Senate and House, including sitting in the seat of the Senate's presiding officer, leaving incendiary devices nearby, etc.).

This was more than a whiff of fascism. This is what fascism looks like.

So, we have to ask: beyond the lying, insurrection-instigating, so-called President, how did we get here?

The story actually goes a long way back.

First, the more obvious Republican side of the story:

Although his administration did eventually oversee some environmental protections, President Richard Nixon gained the White House via a law and order campaign in 1968, appealing to the so-called "silent majority" who were frightened, if not alienated, by the images of antiwar protesters, inner-city "rioters," and counterculture "freaks" during the 1960s.

The mass media, of course, fed this dynamic by refusing to take seriously the actual claims of Black, antiwar, and feminist activists; instead, making sure the public saw the most inflammatory examples of their behaviors and appearances. That's a story I have documented elsewhere.

Nixon's election and his "Southern Strategy" set in stone the future of the Republican party, although it remained for Ronald Reagan to seal the deal. Reagan's rhetoric about basic "decency" and "family values," fed the grievances of those who felt left out of, or alienated by, the '60s. But crucially, Reagan's actual policies focused on eliminating ways the government addresses public needs, instead cutting taxes on the wealthy, rebuilding a huge military complex and aggressive foreign policy, and deregulating the economy.

However, the people drawn to so-called conservative rhetoric — whether religious traditionalists, rural folks or members of the white working class — were not the actual winners under Reagan. Instead, they lost more and more ground economically. They basically got symbolic gratification. Their attention was instead diverted to the Democrats, liberals and "Eastern elites" who "caused" their problems.

That's the path that leads directly to Trump and his True Believers.

What, then, of the Democratic Party?

That, too, is a long story. In the midst of the Reagan years, smarting from Nixon's humiliating victory in 1972 and Reagan's in 1984, Democratic centrists — names like Dick Gephardt, Sam Nunn, Bill Clinton [TONY COELHO]— took steps to move the party away from its more liberal wing and into the corporate-dependent center. In its more liberal moments the Democratic Party typically expressed hopeful rhetoric about defending the rights of minorities, women and LGBTQ people, defending the environment, etc. The reality consistently fell far short of the rhetoric.

So, in our two-party system, Republicans have been all about give-aways to the rich while manipulating the emotions of less well-off white Americans. Democrats have essentially ignored the latter populations, becoming increasingly dependent on corporate money while also manipulating the aspirations of marginalized communities.

Neither party speaks a word against a capitalist system that feeds inequality, threatens the planet's ability to sustain life, and generates a foreign policy marked by militarism and war. The "problem" is always the "other party."

In their more liberal moments, Democrats embrace what is often called "identity politics" — race, gender, and sexuality in particular. This rhetorical embrace is used by Republicans to feed the emotional attachment of their rank and file supporters. Democrats gain support when Republican rhetoric becomes outrageous. Clearly, the political center, with all its sanctimonious rhetoric, is reinforced when something like the Capitol assault occurs.

Yet the country remains stuck in this see-saw battle that goes nowhere. Beholden to corporate wealth, neither party dares to confront class inequality. Yet, unlike identity concerns about discrimination, hate speech, and oppression — all serious problems — class analysis reveals the systemic forces that lie behind these and keep both parties' rank-and-file in their place at the margins of American politics.

Ultimately, the only way out of this will occur when enough people becomeaware, not only of the seriousness of the hazards facing us, but of the need to come together in a well-mobilized mass movement addressing systemic concerns.We already see where we're heading if we don't do this.

FROM YOUR SITE ARTICLES

Ever since 1796, Congress has struggled to keep presidents in check

The Conversation

George Washington, hero of the American Revolution and the country’s first president, in 1796 withheld documents the House of Representatives had requested from him.

NB wm barr subpoena blanket assertion on exec priv over all metters of gov't eg environment? rep jackson lee

On Monday I wrote about the GOP’s long-term plan to turn the presidency into a (Republican) unitary executive office. You might think that it makes no sense that members of Congress would go along with such a thing, seeing as it directly interferes with their own constitutional prerogatives. That was certainly what the founders assumed would be the case. They assumed that human egos would demand that people jealously guard their own branches of government, thus preserving the checks and balances that would keep any one branch from gathering too much power unto itself. But it turns out that the modern Republicans are loyal to their party above all else, and no one personifies that dedication more than Senate Majority Leader Mitch McConnell.

When the history of this bizarre era is written, it may very well be said that McConnell was the man behind the curtain who made it all happen. Depending on who does the writing, he could also go down as one of America’s most notorious senators. No, he’s not like those traitors who abandoned the Senate to join the Confederacy, nor is he a crude segregationist like the 20th century’s Theodore Bilbo or James Eastland of Mississippi. He’s no demagogue like Wisconsin’s Joe McCarthy or Louisiana’s Huey Long either. But there are elements of all of those men in McConnell, who holds a very special place in that pantheon as what historian Christopher R. Downing called “the gravedigger of democracy.”

ref

https://www.salon.com/2019/05/06/why-jim-comey-is-wrong-trump-is-a-monster-all-right-but-the-gop-created-him/

no lnx

Former FBI Director James Comey wrote a provocative op-ed for the New York Times last week in which he describes what it's like to have Donald Trump try to "eat your soul in small bites." He says that Trump has a way of overwhelming people's better angels and robbing them of integrity over time, until they either find the energy to get away or become a full-fledged Trump sycophant.

It has the ring of truth. One suspects that there are more than a few people in Trump's orbit who were originally appalled by his behavior but adapted over time and are now in a sort of cult-like state of obedience, without minds of their own. Once you make enough moral and ethical compromises, it becomes necessary to convince yourself that you are doing the right thing if you want to look yourself in the mirror every morning.

Comey says that Attorney General William Barr and Deputy Attorney General Rod Rosenstein are among those people, contrasting them with former Defense Secretary Jim Mattis, who has the distinction of being the only former senior administration official who resigned as a matter of principle. It is so rare that Trump didn't even realize what was happening until the news media informed him that Mattis' resignation letter was a rebuke.

In Comey's reckoning, this is all about Trump's preternatural ability to get people to do things they wouldn't ordinarily do. Like all good con artists, Trump does have a talent for drawing people into his scam. But I'm skeptical that more than a handful of the Republicans in the current administration have been so co-opted. There's more to it than that.

According to Josh Marshall at Talking Points Memo, this is really about the entire party being radicalized by Fox News propaganda over the past 25 years, and that includes members of the elite establishment like Barr. I think that's right. It's quite clear that the flamboyant extremism of the modern right-wing media machine invented by the likes of talk radio's Rush Limbaugh and Fox News' Roger Ailes has become the mainstream of conservative thought. Barr is steeped in it, as he showed even before he became Trump's attorney general, when he told the New York Times that the bogus fever-swamp scandal about Hillary Clinton's supposed involvement with the Uranium One deal was more worthy of investigation than Russian interference in the 2016 election.

But that's not the whole story either. Republicans aren't having their souls gobbled up by this devious con man. They have plans of their own.

Back in 2012, Grover Norquist laid it all it plainly:

We don't need a president to tell us in what direction to go. We know what direction to go. We just need a president to sign this stuff. We don't need someone to think it up or design it. ... Pick a Republican with enough working digits to handle a pen to become president of the United States.

Trump is a pain in the neck, to be sure. He causes lots of unnecessary drama and almost certainly embarrasses these Republicans on occasion. And I'm sure there are some who worry that this whole thing could get out of hand. But what they have in Trump is a man with (small) working digits who is handling a pen and accomplishing some of the most important items on their wish list.

Yes, Republicans were unable to repeal Obamacare. But think about it: That only happened because one senator, face to face with his mortality, stopped them. Otherwise, they had it in the bag. They got their tax cuts and their military buildup. They have taken a wrecking ball to the regulatory state. They've torn up the Iran nuclear deal and the Paris climate agreement. They've packed the courts with far-right judges, and as former White House counsel Don McGahn proudly told Senate GOP staffers, those judges "will spend 30–40 years unwinding the power of executive agencies." McGahn may end up being an instrument of Trump's eventual downfall, but he had a bigger job to do and he took care of that first.

Bill Barr has a job to do as well, and it's not just following the fever dreams of Sean Hannity and Jeanine Pirro. As Charlie Sykes points out in this piece, Barr is a professional protector of presidential power, going back to his first stint as attorney general in George H.W. Bush's Department of Justice. He refused to name an independent counsel to investigate "Iraqgate" instead taking it on himself and then stalling until the independent counsel statute ran out. He encouraged Bush to pardon everyone indicted in the Iran-Contra affair.

Barr was obviously chosen for that particular experience and expertise, but also because he is a true believer in the right-wing philosophy of the "unitary executive." This Politico profile makes clear how the Republican establishment sees Barr:

“Barr is the closest thing we have to [Dick] Cheney,” said Chuck Cooper, a conservative litigator and Barr ally who, like the attorney general, has led the Justice Department’s Office of Legal Counsel. “He’s a man. He has a very strong sense of purpose and confidence.”

Barr is part of an influential group of right-wing lawyers and politicians who all came up together in the 1980s and believe in unfettered presidential power. Cheney is another. Just as McGahn saw the opportunity to pack the judiciary with like-minded judges, Barr's mission is to push the envelope on presidential power and create judicial precedents to cement it in place. If he has to put up with Trump's antics, so be it. He provides Republican thought-leaders with an opportunity to achieve their long-term goals. In a way, having someone like Trump in power, completely ignorant on how the system is designed to work, serves them better than an ordinary politician. He literally has no idea what they're up to, and wouldn't care about it if he did.

You may ask why they would want to allow Democratic presidents to wield the same powers when they're in office. I think they simply believe that Democrats don't have the guts to take it to the limit because they're too caught up in their own self-image as believers in "good government." And since Republicans no longer respond to charges of hypocrisy, they would unleash hell on any Democrat who attempted to use the powers of the presidency the way Trump is currently doing. Republicans believe they alone will use the power of the presidency to maximum effect. They're probably right.

So sure, craven politicians like Sen. Lindsey Graham, R-S.C., who needs to run for re-election in a state filled with Trump worshippers, are just playing old-fashioned politics. Others no doubt actually think that Trump is a great president and just want to be part of making America great again. Fox News brain rot is a real phenomenon. And there are more than a few who are simply in it to feather their own nests. The Trump era is a sewer of corruption.

But it's pretty clear that many of the people in this administration are anything but co-opted by Trump's magical soul-eating powers. It's the other way around. Donald Trump may or may not be Putin's puppet but he's definitely the Republican establishment's useful idiot.

http://www.pfaw.org/blog-posts/brett-kavanaugh-would-put-trump-above-the-law

Our federal judicial system provides an essential check on the ability of a president to abuse his power and exceed the authority granted under the Constitution. In the era of Donald Trump, the Supreme Court may very well determine whether our democracy survives his presidency. Ominously, the person he has chosen to serve on the Supreme Court has an extensive record demonstrating his belief that the president is above the law.

Brett Kavanaugh’s commitment to unlimited presidential power is no doubt one of the reasons President George W. Bush nominated him to the powerful D.C. Circuit, where he has been a judge since 2006. His record since then has only confirmed the fears of those who opposed his highly controversial nomination.

Take the issue of whether a sitting president can be criminally indicted—a matter of some interest to Donald Trump. Kavanaugh wrote about this in a 1998 Georgetown Law Journalarticle entitled “The President and the Independent Counsel.” He described this as “a question that the Constitution does not explicitly address,” but he made his legal interpretation clear, urging Congress to make explicit that:

the President can be indicted only after he leaves office voluntarily or is impeached by the House of Representatives and convicted and removed by the Senate.

That is surely music to Trump’s ears, even though it strikes a dissonant note against accountability. As long as Republicans control Congress, Trump’s position is safe. They have built a cult of personality aroud their leader and demonstrated repeatedly throughout 2017 and 2018 that they will take no action to hold Trump accountable or limit the damage he is doing to our nation and our democracy. If there were a criminal indictment, Trump would challenge its constitutionality all the way to the Supreme Court, knowing he’d have Kavanaugh’s vote in the bag.

Indeed, Kavanaugh believes a president under investigation should be able to influence and even shut down the investigation. As a panelist at a Georgetown Law School symposium held in February of 1998, he stated:

A special prosecutor should be nominated by the President and confirmed by the Senate. Not by an isolated panel of judges. The prosecutor should be removable at will by the President.

At the same symposium, he told those in attendance:

If the President were the sole subject of a criminal investigation, I would say no one should be investigating that.

He stated that such a situation should only be addressed by Congress—an approach that we have seen is meaningless when those in control of Congress put the interests of their party leader over that of the nation.

Just a few years later, when the Bush White House was asserting unprecedented executive authority to ignore constitutional and statutory limitations in what they called the “war on terror,” they chose Kavanaugh to be a judge on the D.C. Circuit. Since 2006, he has not disappointed them, showing time and again his extreme view of executive authority.

For instance, in a 2011 case called Seven-Sky v. Holder, the D.C. Circuit upheld the Affordable Care Act over Kavanaugh’s dissent. Released less than a year before the presidential election, the dissent contained a footnote that would have given President Obama’s successor the authority to destroy the ACA even though it was federal law:

Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.

He had no majority opinion of the Supreme Court to cite in support of this extreme position, which Jeffrey Toobin sharply criticized:

That, to put the matter plainly, is not how it works. Courts, not Presidents, “deem” laws unconstitutional, or uphold them. “It is emphatically the province and duty of the judicial department to say what the law is,” Chief Justice John Marshall wrote in Marbury v. Madison, in 1803, and that observation, and that case, have served as bedrocks of American constitutional law ever since.

But if confirmed to the high court, Kavanaugh would be in a position to change that bedrock to fit his own—and Trump’s—vision of presidential power.

He applied that vision in 2016 in a three-judge panel decision in PHH Corp. v. Consumer Financial Protection Bureau, striking down the Consumer Financial Protection Bureau as unconstitutional—not a particular action by the independent agency, but the agency itself. The full D.C. Circuit subsequently vacated that ruling and rejected Kavanaugh’s interpretation of executive authority.

Since the creation of the Interstate Commerce Commission in the 19th century, Congress and the president have recognized the need for some agencies to be insulated from political pressure. They have created numerous independent agencies whose leaders are nominated by the president subject to Senate confirmation, but then not removable by the president without cause. Examples include the Federal Trade Commission, the Federal Reserve Board, the National Labor Relations Board and the Consumer Product Safety Commission. The Supreme Court long ago upheld this type of structure as constitutional.

The CFPB was created as part of the historic Dodd-Frank law and is led by a director with a six-year term who cannot be removed without cause. Kavanaugh wrote that the inability to fire the director infringed on the president’s authority to run the executive branch as he sees fit. While entities like the FTC have several commissioners, the CFPB’s leadership consists of one director. Kavanaugh concluded that this difference makes the Bureau violate the president’s executive authority even while multi-member commissions don’t.

As noted above, the full D.C. Circuit rejected this reasoning. But Kavanaugh’s dissent made clear his belief that all independent agencies are constitutionally suspect at best, Supreme Court precedent notwithstanding:

Because of their massive power and the absence of Presidential supervision and direction, independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.

And that precedent might not be long for this world if Kavanaugh were to be confirmed. He made that clear in his dissent:

As a matter of first principles, there would be a strong argument that this case could and should be resolved in PHH’s favor by the constitutional text alone — on the ground that independent agencies violate Article II. But Humphrey’s Executor [a seminal case on independent agencies] rejected that broad argument, and we as a lower court are bound by that case.

As a nominee, Kavanaugh is unlikely to come out and say that the president has the constitutional authority to fire any head of any agency, even if it was created to have some independence from political pressure. He is unlikely to state clearly that, in his view, no independence is permissible; that the president can remove an agency head (or use the threat to do so) to make the agency fully subject to his will—and his will alone.

But he doesn’t need to say it at his confirmation hearing. He has already told us.

It’s no wonder that Kavanaugh rose to the top of the list of individuals that Donald Trump wants to put onto the Supreme Court.

After the summit in Helsinki, during which Trump capitulated to Vladimir Putin, it has become absolutely clear how critical it is that any lifetime appointee to the Court be a check on his efforts to be unbridled from the law. But even before Helsinki, it was clear that our nation cannot afford to have Brett Kavanaugh on the Supreme Court.

Tags:

Brett Kavanaugh donald presidential power Protecting the Supreme Court Supreme Court

https://www.alternet.org/news-amp-politics/donald-trump-just-sign-much-deeper-failings-united-states-and-world

tom e

...In a sense, it may hardly be more out of the ordinary to face a failing experiment in what, earlier in this century, top officials in Washington called “nation building” than in our individual lives. In this case, the nation I’m thinking about, the one that seems in the process of being unbuilt, is my own. You know, the one that its leaders -- until Donald Trump hit the Oval Office -- were in the habit of eternally praising as the most exceptional, the most indispensable country on the planet, theglobal policeman, the last or sole superpower. Essentially, it. Who could forget that extravagant drumbeat of seemingly obligatory self-praise for what, admittedly, is still a country with wealth and financial clout beyond compare and more firepower than the next significant set of competitors combined?

Still, tell me you can’t feel it? Tell me you couldn’t sense it when those election results started coming in that November night in 2016? Tell me you can’t sense it in the venomous version of gridlock that now grips Washington? Tell me it's not there in the feeling in this country that we are somehow besieged (no matter our specific politics), demobilized, and no longer have any real say in a political system of, by, and for the billionaires, in a Washington in which the fourth branch of government, the national security state, gets all the dough, all the tender loving care (except, at this moment, from our president), all the attention for keeping us “safe” from not much (and certainly not itself)? In the meantime, most Americans get ever less and have ever less say about what they’re not getting. No wonder in the last election the country’s despairing heartland gave a hearty orange finger to the Washington elite.

States of Failure

“Populist” is the term of the moment for the growing crew of Donald Trumps around the planet. It may mean “popular,” but it doesn’t mean “population”; it doesn’t mean “We, the People.” No matter what that band of Trumps might say, it’s increasingly not “we” but “them,” or in the case of Donald J. Trump in particular, “him.”

No, the United States is not yet a failed or failing state, not by a long shot, not in the sense of countries like Afghanistan, Iraq, Libya, Syria, and Yemen that have been driven to near-collapse by America’s twenty-first-century wars and accompanying events. And yet, doesn’t it seem ever easier to think of this country as, in some sense at least, a failing (and flailing) experiment?

It’s hard to look back on the last decades and not think that democracy has been sinking under the imperial waves. I first noticed the term “the imperial presidency” in the long-gone age of Richard Nixon, when his White House began to fill with uniformed flunkies and started to look like something out of an American fantasy of royalty. The actual power of that presidency, no matter who was in office, has been growing ever since. Whatever the Constitution might say, war, for instance, is now a presidential, not a congressional, prerogative (as is, to take a recent example, the imposition of tariffs on the products of allies on “national security” grounds).And don’t just blame it on Donald Trump. That’s the easy path to an explanation. Something had to go terribly wrong to produce such a president and his tweet-stormed version of America. That should seem self-evident enough, even to -- though they would mean it in a different way -- The Donald’s much-discussed base. After all, if they hadn’t felt that, for them, the American experiment was failing, why would they have voted for an obvious all-American con man? Why would they have sent into the White House someone whose Apprentice-like urge is to fire us all?

As Chalmers Johnson used to point out, in the Cold War years the president gained his own private army. Johnson meant the CIA, but in this century you would have to add America’s ever vaster, still expanding Special Operations forces (SOF), now regularly sent on missions of every sort around the globe. He’s also gained his own private air force: the CIA’s Hellfire-missile armed drones that he can dispatch across much of the planet to kill those he’s personally deemed his country’s enemies. In that way, in this century -- despite a ban on presidential assassinations, now long ignored -- the president has become an actual judge, jury, and executioner. The term I’ve used in the past has been assassin-in-chief.

All of this preceded President Trump. In fact, if presidential wars hadn’t become the order of the day, I doubt his presidency would have been conceivable. Without the rise of the national security state to such a position of prominence; without much of government operations descending into a penumbra of secrecy on the grounds that “We, the People” needed to be “safe,” not knowledgeable; without the pouring of taxpayer dollars into America’s intelligence agencies and the U.S. military; without the creation of a war-time Washington engaged in conflicts without end; without the destabilizationof significant parts of the planet; without the war on terror -- it should really be called the war for terror -- spreading terrorism; without the displacement of vast populations (including something close to half of Syria’s by now) and the rise of the populist right on both sides of the Atlantic on the basis of the resulting anti-immigrant, anti-Muslim sentiments, it’s hard to imagine him. In other words, before he ever descended that Trump Tower escalator into the presidential race in 2015, empire had, politically speaking, trumped democracy and a flawed but noble experiment that began in 1776 was failing.

Had that imperial power not been exercised in such a wholesale way in this century, Donald Trump would have been unimaginable. Had President George W. Bush and his cronies not decided to invade Iraq, The Donald probably would have been inconceivable as anything but the proprietor of a series of failed casinos in Atlantic City, the owner of what he loves to call “property” (adorned with those giant golden letters), and a reality-TV host. And the American people would not today be his apprentices.

In other words, in the twenty-first century, Donald Trump is proof indeed that the American experiment in democracy may be coming to an unseemly end in a president with all the urges of an autocrat (and so many other urges as well). Or think of it this way: the contest -- from early on an essential part of American life -- between democracy and empire seems to be ending with empire the victor. However -- and here may be Donald Trump’s particular significance -- empire, too, looks to be heading toward some kind of ultimate failure. He himself is visibly a force for imperial demolition. He seems intent -- as in the recent abusive NATO meeting and the chaotic get-together with Russian President Vladimir Putin -- on dismantling the very world that imperial America built for itself in the wake of World War II. You know, the one in which it was to be the ultimate and eternal victor in a rivalry between imperial powers that had begun in perhaps the fifteenth century, reached its peak when only two “super” rivals were left to face each other in the Cold War, and ended with a single power seemingly triumphant and alone on planet Earth.When that “very stable genius” (as he reminded us again recently) inherited such powers long in the making, he also inherited the power to use them in ways that would have been unavailable to the president of a country that had genuine “checks and balances,” one in which the people knew what was going on and in some sense directed it. Consider it a sign of the times that he’s the second president to lose the popular vote in this 18-year-old century -- the first, of course, being George W. "Hanging Chad" Bush. So perhaps it’s only proper that President Trump has now nominated to the Supreme Court a judge who was once a Republican operative for the very legal team focused on stopping the recount of those contested Florida ballots in 2000 -- a recount the Supreme Court did indeed halt, throwing the election to Bush. Note that Brett Kavanaugh is also the perfect justice for America’s new imperial age of decline, one whogenuinely believes that the law should read: the president, while in office, is above it. Think of him as Caligula’s future enabler.

How quickly those historically unique dreams of global dominion fell apart in the “infinite wars” of this century. Think of Donald Trump as the overly ripe fruit of that failure, that endless imperial moment that never quite was. Think of him as the daemon in the (malfunctioning) global machinery of a world that is itself -- as in Brexiting “Europe” -- evidently beginning to come apart at the seams amid war, a flood of global refugees, and one factor never experienced before (on which more below). Think of America as being caught up in some only half-recognized United Stexit moment, though what exactly we are withdrawing from may be less than clear.

Still, bad as any moment might be, you can always hope for, dream about, and work for so much better, as so many have over the centuries. After all, everything I’ve described remains the norm of history. What empire hasn’t had its Caligulas, its Trumps? What empire hasn’t, in the end, gone down? What democratic experiment hasn’t sooner or later faltered? Even the best of experiments come up short as autocrats take power and hand their rule on to their sons, only to be overthrown by some revolt, some new attempt to make better sense of this world, which itself falters sooner or later. And so it goes.

Again, that, as they say, is history, a series of failed experiments, but ones that always end, in their own fashion, with hope still alive for a better, fairer, juster world. Yes, a particular failure might be terrible for you, your community, even several generations of yous, but it, too, will pass and you can expect our better angels to reappear someday, even if not in your lifetime -- or at least until recently you could do so.

The Ultimate Experiment

There is, however, another experiment, a planet-wide one that seems to be failing as well. You could think of it as humanity’s experiment with industrial civilization, which is disastrously altering the environment of this previously welcoming world of ours. I’m referring, of course, to what the greenhouse gases from the fossil fuels we’ve been burning in such profusion since the eighteenth century are doing to our planet.

Whether you call it climate change or global warming, the one thing it isn’t -- despite the fact that we’ve done it -- is history. Not human history anyway. After all, its effects will exist on a time scale that dwarfs our own. If allowed to play out to its fullest, it could destroy civilization. And ironically enough, unlike so many of our experiments, this was one we didn’t even know we were conducting for something like a century and a half. So consider it an irony that it’s the one likely to endanger every other imaginable experiment. If not somehow halted in a reasonably decisive fashion, it could not only inundate coastal cities, turn verdant lands into parched landscapes, and create weather extremes presently hard to imagine, but produce heat that will be devastating.

And yet don’t give us any kind of a free pass on this one. Despite those endless years of not knowing what we were doing, ignorance can’t be pled. Increasing numbers of us (including the giant oil companies who did everything humanly possible to keep the news from the rest of us) have known about this since at least the 1960s. In 1965, President Lyndon Johnson’s science advisory committee sent him a report that highlighted a human-caused warming of the planet from the carbon dioxide burned off by fossil fuels. It included remarkably accurate projections of the increased heat to come in the twenty-first century and of other effects of climate change, including sea level rise and the warming of sea waters. So don’t say that no one was warned. As time went on, we’ve been warned again and again.

And for this, too, Donald Trump can’t be blamed, but his presence in the White House is now a powerful symbol of a human failure to grasp the dangers involved. Talk about a symbolic act of self-destruction: the American people put a fierce climate denier in the White House. He, in turn, has brought his passionate 1950s-style fantasies of an even more oil-fueled global future with him. He has, among other things, appointed a remarkable set of Republican climate-change doubters and deniers to crucial positions throughout his administration. He’s moved to withdraw this country from the Paris climate accord, while powering up fossil-fuel and greenhouse-gas-producing projects of every sort and weakeningthe drive to develop alternative energy sources;he has, that is, done everything in his power to stoke global warming.

Along with the actions of the CEOs of the giant oil companies, this will surely prove to be the greatest criminal enterprise in history,since it takes the all-time largest greenhouse gas emitter out of the running (except at the state and local level) when it comes to impeding global warming. In other words, whatever else he may be, President Donald Trump seems singularly intent on being a one-man wrecking crew when it comes to human history.

Since Lucy walked upright by that African lake three million years ago, this has been a remarkably welcoming planet for the human experiment. If, in the coming century, climate change hits full force, it won’t just be a matter of refugees in the hundreds of millions or individual deaths in countless numbers, or some failing democracy that became an empire. It could mean the failure of the whole human experiment in ways that are still hard to grasp. It could mean no more chance for failure, The End.

That’s something worth working against. That’s a failure no one in any possible future can afford.

In the meantime, here I am, another year closer to my own moment of “failure,” living in a potentially failing country on a potentially failing planet. Happy birthday to me.

uhoh

pardons? nuke war?

20. Infamous quotes from of the Sunday morning shows last weekend.

“Our opponents, the media and the whole world will soon see as we begin to take further actions that the powers of the president to protect our country are very substantial and will not be questioned.”

“The president’s powers...represent the apex of executive authority.”

“We will have unquestioned military strength beyond anything anybody can imagine.”

“That’s the story we should be talking about and I’m prepared to go on any show anywhere anytime and repeat it and say the president of the United States is correct 100 percent.”

THE TAKEOVER imp presidency

scooter takes notes on flt 93 shootdown

b2 ppl were tx, dc ppl were dc vets

30 yr pgm to expand exec vs congress and ud p 8, says so publically

started under RR and b1 back to rumsf hired dc to work for rmn (early backer, rmn asked him to quit congress

schles says imp pres started w/ truman and grew to rmn, checked post vn and watergate. under art's of confed, no exec failed; barbary pirates etc 1787 new constitution; congress makes rules, eec obeys and does them; over time allows info to be withheld with good reason, but those got expanded. Lincoln took liberties, but asked forgiveness; 1866 sup ct did not allow some actions. TR said prez cd do anything not exprrssly forbidden. truman sent troops to korea w/o war decl. took over steel.

ike invoked exec prov 1st time to thward McC. RMN when the prz does it, that means it's legal.

RMN used impoundment of $ to prevent agencies from carrying out mission p21 authorized warrentless wiretaps etc.

Rums took off of legal services office job to hobble it (free legal help to poor) 23 eg sued RR gov Ca for cutting medical in classd action care ; later did proce controls, the NATO

under ford, scalia fought bill to retrict use of classified to hide docs 27 soon after Church hearings on CIA; scalia tesitified? dc ordered press sec to stonewall on assassionation p 30

FED Soc: u chic and yale to bring in spkers

Dems went along for 2 yrs on dereg w/ RR, had to do cost-bene for new regs; but epa head Anne G Burford was dismantling her own epa and in 85 house wanted indep counsel investigation of lying and hiding docs 47 incl Ted Olsen on perjury; to defend, Messe said all had misundetood sep of pwers 48; pres shd be able to fire IC; larry silberman pal of DC (on sup ct? only scalia backed meese)

DC alt report tried to cover for iran contra? and to limit more constriants on exec pwr; addington claim pres had right all along revived 20 yrs later on NSA wiretaps 57

3/98 rep DC did talk at AEI on pres poer, submitted 42 pp essay to support

BC refused to say who attenbded halth care reform mtgs 64 but then 180; also aid to honor FOIA that RR resisted

After KS found nothing, IC law allowed to expire in 99 p65

Yoo claimed that BC overstepped on kosovo and ABM ?!

out of gov in 92, dc joined aei

lawyers for Bush later helped in FLa

after 911, pres power macho one up

yoo bio 79 yale law fed soc 1992 clerked for presidentialsist silberman andf thomas

1st fame for ppr that pres did not need cogr to decalre war p80

CA blackout prompted dc energy comm barbour memo infl (his firm called 1# lobbyist)

comm asked if you were il duce, what want? 86

waxman and dingell asked for info based on 1972 law refused since ind ppl not in gov

GAO had oversight 80 yrs, but now resisted

dc said b/c of watergatre, he rarely wrote anything (no emails) 90

Jud Watch scaife funded, tho went after cheyney, found comm looking at iraqi oil fields

1.o6 hansen complained of gag (USGS too 106 3/07 US F&W gagged on polar bears etc even if asked

1/02 yoo argued not bound by Geneva; secret legal opinion alowed exraordinary rendition149

3/03 exec order made easier to reclassify docs 162

scooter sent 30 mos but b2 commuted

SC punt of energy task force rec's actually a win 167-8

1/05 Armtring wms sown to be shill paid 240K$ may 05 congress law to make public any prop effort 173

Gonzales and Card trid to strongarm ashcroft in hosp p 185

torture signing statements

roberts and Miers noms

concl: more decisons will be made by fewer ppl

task force; 15 lobby plus 1 gov't official ~ FACA Fed Advisory Comms Act this is not a pipe 10

paul o'n liked public/pvt mts, but transparent; smelled trouble; Suskin price of Loyalty dc says info gets used by enemy p 11

HW and dingell sent ltr; m matalin said "politics of destruction" asked for names and notes 11; walker rolled back to only names of non-gov.11 but dc and mm k to say the req was for more,a lie 12; int by Tony Snow on Fox -->WH spokes;

exec privil only to protect nat'l sec or funct of prez; bruce fein const law RR ~; 1st x 80 yrs gao sued; Ted O argued tho way below his pay grade at distr ct level; judge john bates 1 yr appt b2 worked for starr on bimbo gate 14 ~ b/c no comm req, but all chair are gop so won't; lead house oversight comm req 5 subopenas wrt WH and GOPm but same comm in clinton admin 8 yrs asked for 1052. 14 walker did not applal b/c of $ waste, but said no big deal as ruling only applies to this case, but DC knew he cd use as precedent p 14 gop makesa fight whenever poss to give pres leverage over congress "rule is "like a loaded gun forever. 9" to congr head p 14-5 say fein.

Ashcroft backs dc, nrdc and jud watch sued [jud wat just did something evil yesterday?trayvon]p 15 got oilfield maps [recall wolfie plan for decades0 ; vulan dc, rumy, wolf, powell, rice , armitage, perel); oil min from neighbor countries caled in;

The people who helped transform a democratically accountable president into a Caesar include John Yoo, who was rewarded for his treason by being accepted as a law professor at the University of California, Berkeley, Boalt school of law. Yoo’s colleague in treason, Jay Scott Bybee was rewarded by being appointed a federal judge on the US Court of Appeals for the Ninth Circuit. We now have a Berkeley law professor teaching, and a federal circuit judge ruling, that the executive branch is above the law.

The executive branch coup against America has succeeded.

http://www.alternet.org/print/investigations/executive-branch-evil-and-lawless

The second category of Republican tactics of permanent power are those that must be banished from our public life forever. Hamburger and Wallsten discuss in great detail the misuse of executive branch power for raw political purposes. Karl Rove apparently dropped by unannounced to meetings of managers at the Fish and Wildlife Service and sent polling data to political appointees in such agencies to ensure that routine decisions were made according to the White House’s political priorities. Workshops on how to apply for funds for abstinence education were located in certain electorally key states in order to mobilize religious groups. There are dozens of similar examples. http://www.washingtonmonthly.com/features/2006/0610.schmitt.html

From Wikipedia, the free encyclopedia

The **unitary executive theory** is a theory of American constitutional law holding that the President controls the entire executive branch. The doctrine is based upon Article Two of the United States Constitution, which vests "the executive power" of the United States in the President.

Although that general principle is widely accepted, there is disagreement about the strength and scope of the doctrine.^[1] It can be said that some favor a "strongly unitary" executive, while others favor a "weakly unitary" executive.^[1] The former group argue, for example, that Congress's power to interfere with intra-executive decision-making (such as firing executive branch officials) is limited, and that the President can control policy-making by all executive agencies within the limits set for those agencies by Congress. Still others agree that the Constitution requires a unitary executive, but believe this is a bad thing, and propose its abolition by constitutional amendment.^[2]

In several states, in contrast to the federal government, executive officers such as lieutenant governor, attorney general, comptroller, secretary of state and others are elected independently of the state's governor, with Texas being one example. This type of Executive structure is known as a Plural Executive.

Contents

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The theory

The Vesting Clause of Article II provides, "The executive Power [of the United States] shall be vested in a President of the United States of America." Proponents of the unitary executive theory argue that this language, along with the Take Care Clause ("The President shall take care that the laws be faithfully executed..."), creates a "hierarchical, unified executive department under the direct control of the President."^[3]

The general principle that the President controls the entire executive branch was originally rather innocuous, but extreme forms of the theory have developed.^[4] John Dean explains: "In its most extreme form, unitary executive theory can mean that neither Congress nor the federal courts can tell the President what to do or how to do it, particularly regarding national security matters."^[4]

According to law professors Lawrence Lessig and Cass Sunstein, "No one denies that in some sense the framers created a unitary executive; the question is in what sense. Let us distinguish between a strong and a weak version."^[1] In either its strong or weak form, the theory would limit the power of Congress to divest the President of control of the executive branch. The "strongly unitary" theory posits stricter limits on Congress than the "weakly unitary" theory.^[1]

Some scholars oppose even the "weakly unitary" theory and favor creating a plural executive, as in the many state governments that separately elect an attorney general.^[2] However, those scholars acknowledge that a constitutional amendment would be required to eliminate the federal unitary executive.

Proponents of a strongly unitary theory argue that the president possesses all of the executive power and can therefore control subordinate officers and agencies of the executive branch. This implies that the power of Congress to remove executive agencies or officers from Presidential control is limited. Thus, under the strongly unitary executive theory, independent agencies and counsels are unconstitutional to the extent that they exercise discretionary executive power not controlled by the president.^[3]

The judicial branch implications are that a part of the executive branch cannot sue another part because "the executive cannot sue himself." If the federal courts were to adjudicate disputes between executive agencies, it would violate the doctrine of separation of powers.^[5]

Adoption of constitutional provisions

The phrase "unitary executive" was discussed as early as the Philadelphia Convention in 1787, referring mainly to having a single individual fill the office of President, as proposed in the Virginia Plan. The alternative was to have several executives or an executive council, as proposed in the New Jersey Planand as promoted by Elbridge Gerry, Edmund Randolph, and George Mason.^[6][7]

At the Pennsylvania ratifying convention in 1787, James Wilson emphasized the advantages of a single chief executive, including greater accountability, vigor, decisiveness, and responsibility:

[T]he executive authority is one. By this means we obtain very important advantages. We may discover from history, from reason, and from experience, the security which this furnishes. The executive power is better to be trusted when it has no screen. Sir, we have a responsibility in the person of our President; he cannot act improperly, and hide either his negligence or inattention; he cannot roll upon any other person the weight of his criminality; no appointment can take place without his nomination; and he is responsible for every nomination he makes. We secure vigor. We well know what numerous executives are. We know there is neither vigor, decision, nor responsibility, in them. Add to all this, that officer is placed high, and is possessed of power far from being contemptible; yet not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.^[8]

In 1788, the letters of the Federal Farmer were published, generally considered among the most astute of Anti-Federalist writings. The pseudonymousFederal Farmer defended the proposed unitary executive, arguing that "a single man seems to be peculiarly well circumstanced to superintend the execution of laws with discernment and decision, with promptitude and uniformity."^[9]

Meanwhile, Federalists such as James Madison were emphasizing an additional advantage of a unitary executive. In Federalist No. 51, he wrote that an undivided executive would strengthen the ability of the executive to resist encroachments by the legislature: “As the weight of the legislative authority requires that it should be thus divided [into branches], the weakness of the executive may require, on the other hand, that it should be fortified.”^[10]

Alexander Hamilton later pointed out that the Constitution grants executive power and legislative power in different ways, with the legislative powers of Congress being expressly limited to what is "herein granted," unlike executive powers which are not expressly limited by an enumeration. Hamilton wrote:

In the article which gives the legislative powers of the government, the expressions are "All legislative powers herein granted shall be vested in a congress of the United States." In that which grants the executive power, the expressions are "The executive power shall be vested in a President of the United States." The enumeration ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power....^[11]

In other words, the principle of expressio unius may be more applicable as a limitation upon congressional power than upon executive power. According to Hamilton, the unenumerated executive powers that are vested solely in the President "flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government."^[11]

Those other parts of the Constitution include the extensive powers granted to Congress. Article I of the Constitution gives Congress the exclusive power to make laws, which the President then must execute, provided that those laws are constitutional. Article I, Section 8, clause 18 of the Constitution known as the Necessary and Proper Clause grants Congress the power to "make all Laws which shall be necessary and proper for carrying into Execution all Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof". The Constitution also grants Congress power"To make Rules for the Government and Regulation of the land and naval Forces." The theory of the unitary executive can only be legitimate insofar as it allows Congress to wield its constitutional powers while ensuring that the President can do the same.

Judicial decisions

According to Dana Nelson, a professor of American studies at Vanderbilt University, "the theory of the unitary executive, first proposed under President Reagan, has been expanded since then by every president."^[12] In fact, the unitary executive was a matter of controversy long before the Reagan administration. For example, in the 1926 case of Myers v. United States, the United States Supreme Court decided that the President has the exclusive power to remove executive branch officials, and does not need the approval of the Senate or any other legislative body. The Court also wrote:

The ordinary duties of officers prescribed by statute come under the general administrative control of the President by virtue of the general grant to him of the executive power, and he may properly supervise and guide their construction of the statutes under which they act in order to secure that unitary and uniform execution of the laws which article 2 of the Constitution evidently contemplated in vesting general executive power in the President alone.^[13]

Subsequent cases such as Humphrey's Executor v. United States (Presidential removal of certain kinds of officers), United States v. Nixon (executive privilege), and Bowsher v. Synar (control of executive functions) have flexed the doctrine's reach back and forth. Justice Scalia in his solitary dissent inMorrison v. Olson argued for an unlimited presidential removal power of all persons exercising executive branch powers, which he argued included theindependent counsel; the court disagreed, but later moved closer to Scalia's position in Edmond v. United States.^[14]

Criticism of the strong version of the theory

Loyola Law School Professors Karl Manheim and Allan Ides write that “the separation among the branches is not and never was intended to be airtight,” and they point to the President’s veto power as an example of the executive exercising legislative power. They also cite other examples of quasi-legislative and quasi-judicial power being exercised by the executive branch, as necessary elements of the administrative state, but they contend that ultimately all administrative power belongs to Congress rather than the President, and the only true "executive" powers are those explicitly described in the Constitution.^[15] In this understanding, Manheim and Ides follow in the footsteps of Lessig and Sunstein.^[1]

Professors David Barron and Martin Lederman have also criticized the strong version of the Unitary Executive Theory. They acknowledge that there is a compelling case for a unitary executive within the armed forces.^[16] However, they argue that the Constitution does not provide for an equally strong unitary executive outside the military context, and they argue that the Commander in Chief Clause would be superfluous if the same kind of unitary presidential authority resulted from the general constitutional provision vesting executive power in the President.^[17]

Contrary to claims of some authors,^[18] the first administration to make explicit reference to the "Unitary Executive" was not that of President George W. Bush. For example, in 1987, Ronald Reagan issued a signing statement that declared: "If this provision were interpreted otherwise, so as to require the President to follow the orders of a subordinate, it would plainly constitute an unconstitutional infringement of the President's authority as head of a unitary executive branch."^[19]

The George W. Bush administration made the Unitary Executive Theory a common feature of signing statements.^[20] For example, Bush once wrote in a signing statement that he would, "construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power."^[21] Critics acknowledge that part of the President's duty is to "interpret what is, and is not constitutional, at least when overseeing the actions of executive agencies," but critics accused Bush of overstepping that duty by his perceived willingness to overrule U.S. courts.^[22]

Footnotes

^ ^a^ ^b^ ^c^ ^d^ ^e^ Lessig, Lawrence and Sunstein, Cass. "The President and the Administration," Columbia Law Review, Volume 94 (1994).
^ ^a^ ^b^ Berry, Christopher and Gersen, Jacob. “The Unbundled Executive”,University of Chicago Law Review (2008): "We certainly do not claim that the most sensible or even any plausible interpretation of the US Constitution establishes a plural unbundled executive; but perhaps it should."
^ ^a^ ^b^ Calabresi, Steven and Rhodes, Kevin (1992). "The Structural Constitution: Unitary Executive, Plural Judiciary". Harvard Law Review (The Harvard Law Review Association) 105 (6): 1165. doi:10.2307/1341727.JSTOR 1341727.
^ ^a^ ^b^ Dean, John. Broken Government, page 102 (Viking 2007).
Latham, Joshua. “The Military Munitions Rule and Environmental Regulation of Munitions,” Boston College Environmental Affairs Law Review, Volume 27, page 467 (2000).
Ralph Ketchum, ed. The Anti-Federalist Papers and the Constitutional Convention Debates (Signet Classic, 1986), p. 67 (“MR. [James] WILSON entered into a contrast of the principal points of the two plans [i.e. the Virginia Plan and the New Jersey Plan]… These were… A single Executive Magistrate is at the head of the one – a plurality is held out in the other.”)
Records of the Federal Convention, Article 2, Section 1, Clause 1,(1787), The Founder’s Constitution.
Wilson, James. Pennsylvania Ratifying Convention, 4 Dec. 1787.
Ellis, Richard. Founding the American Presidency, page 39 (Rowman & Littlefield 1999).
Madison, James. Federalist no. 51 (1788-02-06).
^ ^a^ ^b^ Hamilton, Alexander. "Pacificus Letters, No. 1" (1793-06-29).
Nelson, Dana. "The 'unitary executive' question: What do McCain and Obama think of the concept?" Los Angeles Times" (2008-10-11).
Myers v. United States, 272 U.S. 52 (1926).
Calabresi, Steven and Lawson, Gary. “The Unitary Executive, Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia,” Columbia Law Review (2007).
Manheim, Karl and Ides, Allan. "The Unitary Executive," via SSRN (September 2006).
Barron, David and Lederman, Martin. “The Commander In Chief At The Lowest Ebb — Framing The Problem, Doctrine, And Original Understanding,” Harvard Law Review, Volume 121, page 689 (2008): “we think the text, as reinforced by historical practice, makes a strong case for at least some form of a ‘unitary executive’ within the armed forces, particularly as to traditional functions during armed conflicts.”
Barron, David and Lederman, Martin. “The Commander in Chief at the Lowest Ebb -- A Constitutional History,” Harvard Law Review, Volume 121, page 941 (2008): “there are those who would argue that the ‘unitary executive’ must have effective control over all Article II functions, in which case the superintendence guaranteed by the Commander in Chief Clause would not appear to do any additional work with respect to superintendence.”
Kelley, Christopher. "Rethinking Presidential Power — The Unitary Executive and the George W. Bush Presidency," Paper prepared for the 63rd Annual Meeting of the Midwest Political Science Association, April 7–10, 2005, Chicago, IL.
Reagan, Ronald. “Statement on Signing the Federal Debt Limit and Deficit Reduction Bill” (1987-09-29).
Johnsen, Dawn. "What's a President To Do? Interpreting the Constitution in the Wake of Bush Administration Abuses", Boston University Law Review, Volume 88, page 395 (April 2008): "On 363 occasions, President Bush objected to provisions that he found might conflict with the president’s constitutional authority 'to supervise the unitary executive branch.'"
Lazarus, Edward. "How Much Authority Does the President Possess When He Is Acting as 'Commander In Chief'? Evaluating President Bush's Claims Against a Key Supreme Court Executive Power Precedent," FindLaw (2006-01-05): "That signed statement shows, in microcosm, how the President sees the separation of powers: The President, in his view of the world, can interpret away constraints on his power, such as those in the McCain Amendment, or FISA before it. And the courts can hardly question his dubious 'interpretations' even if they gut the very statutes they construe: After all, there are 'constitutional limitations on the judicial power' - though not, apparently, on the power of the executive."
Van Bergen, Jennifer. "The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State?", Findlaw (2006-01-09): "In his view, and the view of his Administration, that doctrine gives him license to overrule and bypass Congress or the courts, based on his own interpretations of the Constitution...."

Bibliography

Barilleaux, Ryan J., and Christopher S. Kelley, eds. The Unitary Executive and the Modern Presidency (Texas A&M University Press; 2010) 242 pages; essays by presidential scholars on the origins, history, use, and future of the unitary executive theory, with particular attention to the presidency of George W. Bush.
Calabresi, Steven and Yoo, Christopher. The Unitary Executive; Presidential Power from Washington to Bush (Yale University Press, 2008).
Kurland, Philip and Lerner, Ralph. The Founders Constitution, Article 2, Section 1, Clause 1.
Latham, Joshua. The Military Munitions Rule and Environmental Regulation of Munitions
Percival, Robert V. (2001). "Presidential Management of the Administrative State: The Not-So-Unitary Executive". Duke Law Journal (Duke University School of Law) 51 (3): 963. doi:10.2307/1373182. JSTOR 1373182.
Rudalevige, Andrew. The New Imperial Presidency
Yoo, Christopher and Calabresi, Steven (2003). "The Unitary Executive during the Second Half-Century". Harvard Journal of Law & Public Policy 26.
Yoo, Christopher et al. (2004). "The Unitary Executive During the Third Half-Century, 1889-1945". Notre Dame Law Review 80. SSRN 559581.
Yoo, Christopher et al. (2005). "The Unitary Executive in the Modern Era, 1945-2004". Iowa Law Review 90 (2): 601. SSRN 690822.

IMPER PRES BAK

Unprecedented power

Kavanaugh. Presidential protector.

Ever since 1796, Congress has struggled to keep presidents in check

The theory

Adoption of constitutional provisions

Judicial decisions

Criticism of the strong version of the theory

Footnotes

See also

Bibliography