From the memes thread...
5thhorseman wrote: ↑Tue Feb 11, 2025 9:06 am
I like to hear how UW thinks this will all play out.
If I understand the workings of US government correctly, ultimately many of the executive orders will be stopped by the judicial branch because they conflict with expenditures approved by Congress. For example, disbanding the CFPB. If Trump wants these actions to go through, he will need to ask Congress to pass a bill. Trump's powers are actually very limited, mainly foreign affairs and vetoing bills approved by Congress.
The concern from the left is, who will enforce the Court's orders? Vance has recently intimated that the courts cannot limit executive power (yeah I know that's not the exact wording Vance used, which is where the left is wrong), but it is a concern as ultimately it will be the AG's responsibility to enforce the Court's orders, and the AG is appointed by Trump. This is the problem with American government, much of it is procedure and tradition and not codified into law. All of that is now being tested. This also applies to the issues that brought us to the point such as weaponization of government departments.
There are so *many* things going on, I don't think it will all play out the same way, and that many of the items described as one of those things are actually many of those things at once.
For example, an executive order might "declare" a certain thing, but the mechanics for how that will happen are not yet complete. For some things, they may solely be within the executive's power, for other things, they might require a rule change (subsequent administrative action), for other things, they might require a change in the law. Whether something is legal is in the details.
In another example from your post, the theme of the day (or last couple of days) is that Trump is "disbanding the CFPB." Well, that's not an immediate "thing" to evaluate. What was immediate is (1) to stop investigations, (2) to suspend effective dates of promulgated but not yet effective rules, to (3) tell people not to come in for a week, and (4) to not take a draw from the fed reserve (which is how their appropriation is designed by law -- which in itself is *extremely weird* and was *very controversial* at the time because it operates as an end run around the basic discretionary appropriation process every other agency involved in enforcing the law is subjected to).
The executive always has discretion to investigate or not investigate, surely has the lesser power to pause an investigation indefinitely. Not a constitutional crisis.
Delaying the effective date of a rule is common, and since at least the Clinton exit (where there was a volley of "midnight regulations"), the next administration has given rules issued on the way out the door another look. Remember, for a rule, the executive chose the effective date, the executive can change it. Not a constitutional crisis.
The executive is also the employer -- if it tells people to stay home, they stay home. (Here, the obvious purpose is that this is a flash audit by DOGE -- preserve the evidence....). Not a constitutional crisis -- elected people and their senate confirmed officers not being able to direct the government workforce? That's a variation of the deep state that the voters wish to be rebuked.
The fourth of these is a form of an impoundment, I suppose, and it is an issue that people like to cast as an extraordinary issue. But UWSaint thinks it will almost surely be resolved by the Supreme Court in the most banal of ways. Whether the President may impound appropriated funds will be a question of legislative intent -- a conservative court will read appropriations statutes to *normally* be an *authorization* to expend x, y, or z, not a *command* to spend every dime. If Congress didn't intend that, they'd need to make that express. But it will depend on the statute in question and the context (the court's way of being able to distinguish one circumstance from another). And think of questions like this in the extreme -- if an agency doesn't spend $5 out of $500 billion, is that money being unlawfully impounded? What is a judicially manageable standard for determining when not spending an appropriation becomes a judicially enforceable violation of the take care clause? Isn't the anti-democratic specter of an appointed court micromanaging what the President's constitutional obligation to "take care" that the laws are faithfully executed far more dangerous than an elected president pushing a boundary against an elected congress -- especially when the alternative for the court is to say, "hey, this is just how we interpret the law, if congress thinks we are wrong, it can change the appropriations language." And if the voters don't like how the President exercises his "take care" responsibilities, vote him out. That's the system.
But onto the big picture, people really need to understand what Trump is doing with all of this.
First, this is a mastectomy, not a lumpectomy. The United States government is full of cancers -- can we all agree on that if we might not agree with what they are? As with a mastectomy, clean cells are removed with the cancerous ones. But that doesn't render a procedure ill-advised. Reconstruction is a post-surgical option -- but first, get rid of the fucking cancer.
Second, all things Trump are a negotiation; and many things Trump are a longer game. People need to understand that a court shutting him down because something exceeds his power does two things.
One, it provides an opportunity to appeal to a Court that is generally more comfortable with the unitary executive theory (and more suspicious of limitless *judicial* power) than any other in the recent past. This will give him a wider berth going forward with clearer lines -- it won't be the berth he's assuming, but its going to restate some norms that most knew was a norm until a non-normal guy did it, and its likely going to revisit (reestablish?) other norms that have allowed the government itself to be insulated from the people elected by the people to run it (watch out "independent" agencies, perhaps good bye to "cause only" termination). And you know what? Liberal district court judges will make this easier by ruling against Trump in cases that any reasonable person would never bring (let alone win), allowing the Supreme Court to have cases presenting "good facts" for setting the boundaries of Presidential power and its reviewability.
Two, on those matters that require legislation -- and there will probably be many -- when Trump "loses" he has leverage with Congress that he lacks even today. Congress usually moves in small increments, timidly. They wouldn't *think* of shutting down the CFBP, but through all of this, all of the gnashing of teeth does is shown the American people that small reform isn't sufficient because these people resist ANY change. The more the bureaucracy and its allies claims to run the government and the opposition party claims (out loud!) that any change to the way things have been is bad and that the real problem is those who try to make change, Trump wins politically, and the political pressure is put on Congress to enact a huge percentage of the reforms Trump may extend his reach too far (legally) to do on his own. And it won't be just as Trump wants, but it will be a good deal more than he would have had if he had asked first.
So understand that to Trump, how this ends is not just what a court rules, but how has this changed the ground on which Congress sits.
Last, a lawyer's habitual reflex is that one should always operate within the clear boundaries of the law and to consider only the costs of violating the law and that all violations of the law are bad. An entrepreneurial businessman knows that all actions not taken because of a concern that the law *might* be violated are giving up on unrealized gains -- leaving money on the table. And they *price in* the costs of going too far and violating the law. I'm not talking here about malum in se stuff, I'm talking about process law and regulatory law. These things a businessman views much more like contracts -- I can fulfill the contract or I can pay damages for not fulfilling the contract; there's no moral component to either choice (though there may be downstream reputational consequences that the business man needs to factor in). Here, what are the downstream effects of Trump going too far and exerting a power that belongs to Congress? If its not touching a third rail--substance people care about--all that happens is that he tried, the court turned him around, and he abided by the order. And there are positive effects, too, from Trump's perspective. The sunlight on the swamp, for one. Attempting to fulfill campaign promises, another. And staying on offense, a third.
(If he doesn't abide by orders, that's a different issue. When the executive ignores the judiciary or where the judiciary lawlessly asserts its authority, that's a potential breaking point).
