Powerful president tests legal system

 

Gordon L. Weil

President Donald Trump singled out Maine Gov. Janet Mills to ask if she would comply with his executive order on transgender athletes.

“I will obey state and federal law,” she replied. 

“Well, I’m ...We are the federal law,” he told her.

 “See you in court,” she replied.

Trump concluded that he would win easily and taunted Mills, suggesting she has no future in politics.

Contrast Trump’s remarks with John Adams’ 1780 definition of the American republic as “a government of laws, not of men.”  Adams was later the second president.

Trump’s view follows his earlier statement that “Article II [of the Constitution] allows me to do whatever I want.”  The president is redefining his role.  If that holds, then check and balances among Congress, the president and the courts are dead. 

The avalanche of executive orders issued by Trump has raised at least two major issues, and both will inevitably end up in court. 

Has the president taken on powers that, under the Constitution, belong to Congress? 

Can the president selectively veto congressional spending by closing or reducing federal agencies or programs through forced staff cuts?

Trump may be encouraged by two factors.  First, he won the election.  His representatives claim that the majority vote victory gave him a mandate to carry out every promise or proposal he had made in the campaign.   This electoral endorsement would amount to a sweeping legislative act, making irrelevant both Congress and the courts.

The other support for Trump’s assertion of power comes from the Supreme Court decision in Trump v. U.S., issued last year.  The Chief Justice, on behalf of the Court, wrote, “the system of separated powers designed by the Framers has always demanded an energetic, independent Executive.”  The Court’s ruling implied that the president could defy Congress.

Presidential executive orders might amount to federal legislation that ordinarily would be under congressional control.  If Congress is dominated by the president’s allies, his solo lawmaking may go unchallenged.  Historically, limits on presidential lawmaking have resulted from the president’s need to compromise with a skeptical Congress, but that’s missing these days.

In the end, presidents may be lawmakers, but Trump is not the law.  The Supreme Court long ago made itself the judge of what the law is.  It can decide that, while Trump could issue an order, it cannot violate the Constitution or existing laws.  Mills implied that Maine could prevail in Court, possibly because Trump had ignored the powers that states lawfully retain.

Acting mostly through Elon Musk, who holds a temporary government position, the Trump administration has tried to shut down the U.S. Agency for International Development and to terminate or reduce federal government programs.  These actions came swiftly, stunning both federal workers and the private sector.

Presidents may dismiss federal employees, provided they respect employee rights set by law or labor contracts.  Musk may be using his business practices to dismiss people under an approving president, but it is doubtful that the Court has yet allowed presidents to go as far with public employees as Musk demands.

These firings amount to an “item veto,” by which a president can block a portion of spending that has been ordered by law.  Trump is not alone among presidents in wanting to have this power.  This move is called rescission and for 50 years it has been banned by law.  President Bill Clinton tried it, and he was overruled.

Just as Republican state attorneys-general brought cases against Biden policies, Democratic AGs are now lodging many legal challenges to Trump.  The courts have begun acting and mostly trying to stick to the law. That means both Trump and his opponents can win procedural points, but the full story has just begun to be written.

Former Maine AG and Harvard Law School lecturer James Tierney claims that the state AGs play “a vital role” in challenging the president.  But, he says, they know that “Donald Trump is the President of the United States.  They are not going to sue their way out of it.”  Plus, congressional Republicans can continue to allow Trump unchecked power.

Trump’s treatment by the same Supreme Court that accepted his assertion of power will be the most important test. Will it impose any limits on his actions and Musk’s?  If it approves his moves and appears partisan, a constitutional crisis caused by his view of presidential power will have arrived.

If it overrules Trump, some of his supporters say the president should ignore unfavorable court decisions.  He should rely on the almost unlimited power given him by the voters in 2024.  If he disobeys the courts, that would also bring the ultimate crisis.

James Harrington, a British philosopher, wrote in 1656: “The empire of laws is concerned with right; the empire of men, with power.”  Which do American voters want?

 

Is Trump breaking the law?

 

Gordon L. Weil

“He violates international law.”  “It’s unconstitutional.”  “It’s against the law.”

That has become the usual response of opponents of new Trump-Musk public policies.  President Trump is accused of actions violating the laws he dislikes. Federal courts are already dealing with legal challenges to the Trump political whirlwind.  What are his chances of prevailing?

As for international law, it grows out of treaties and similar agreements among nations or their commonly observed customs.  Other than losers in war, countries seldom have international laws imposed on them without their consent. International law is somewhere between the law of the jungle and traditional national law.

An agreement like the U.S.-Canada-Mexico trade treaty or the NATO pact committing the U.S. to defend others create international law.  If the U.S. moves against other parties’ understandings of those accords, there’s no international court authorized to decide if it acted lawfully.  There’s a slim chance that a complaint might come before a U.S. court.

Enforcement of international law is mainly left to the other countries affected. They may accept a U.S. move, retaliate or simply quit the agreement.  Both sides may suffer from any of these actions.  If Canada or Mexico cannot afford to oppose Trump’s tariffs that override the trade accord, they may have to let him amend it unilaterally.

The U.S. has historically opposed international courts that could hold it accountable.  International law usually means whatever the American government says it does. If it can’t be held legally accountable, the greatest risk is that other nations will lose trust in the U.S.  If Trump doesn’t care, he could conclude the U.S. is immune from international law.

Under the American legal system, his actions can be judged to see if they are in line with the Constitution or federal law.  The final decision is up to the courts, and the federal government, the states and the people are supposed to abide by their rulings. 

What if the president and the executive branch use powers not given to them by the Constitution or Congress or, even more seriously, openly violate the law?  In the recent case of Trump v. the United States, the Supreme Court closed the door on any legal charges against a president except for a purely personal act.  And it gave itself the power to decide what is purely personal. 

That leaves the only potentially effective way to determine if a president has violated the Constitution or laws entirely in the hands of the courts and, ultimately, the Supreme Court.  If the Court finds a violation of law, the president is expected to comply, and government officials need not follow an illegal order.

Trump has raised some major matters that will undergo court tests.  The Supreme Court previously ruled that anybody born in the U.S., except children of foreign diplomats, is a citizen, but Trump has tried to block that rule for the children of illegal residents or visitors.  He may hope that Republican judicial appointees will back him, but so far that’s not happening.

Trump and Elon Musk are closing federal agencies, created and funded by Congress, by depleting or suspending their personnel. The Supreme Court has previously found that presidents cannot refuse to spend appropriated funds or operate agencies simply because they disagree with the law.  

Vice President JD Vance, trained as a lawyer, rejects court control. He maintains that judges should not overturn the “executive’s legitimate power.”

Trump-Musk might receive a negative court order and simply ignore it.  That’s what one federal judge has already found.

If Trump succeeds, possibly helped by judges he put on the bench, it’s questionable if there are any limits on what he may do.  The Court has already moved to overrule Congress and allow the “unitary” presidency, potentially giving Trump power over the regulatory agencies Congress created. 

Trump and the Supreme Court limit Congress, originally intended to be the leading federal institution.  The last remaining legal obstacle would be for Congress to impeach and convict him. With Republican majorities in both houses, that won’t happen. No president has ever been convicted.

The president is trying to transform the government.  He halts the application of some existing laws and governs by executive order, relying on what he sees as approval by the voters of his campaign promises.  If Vance is correct, the courts are political, not legal, agencies and cannot object.  

At stake now is more than the fate of any agency, program or personnel.  If neither Congress nor the Supreme Court limits the actions of the president, then nothing Trump does would be illegal.

Will the balance of powers among the three branches of the federal government survive or have the people chosen to abandon the checks and balances that the Constitution created in favor of an all-powerful president?

 

Trump turns government around

 

Gordon L. Weil

President Trump is the new captain of what Longfellow called the Ship of State.  He tries to turn the federal government around completely – and quickly.

Captain Trump’s moves to reverse course are both bold and dangerous, creating tests that the captain of any huge vessel might encounter by acting abruptly to completely change direction.  The ship itself could be endangered.

Here’s a few basics about turning a supertanker, the largest vessel afloat, though it is a lot smaller than the U.S. government.

Normally, the ship slows and swings in an arc to reverse direction.  That’s made more difficult with an entirely new crew.  The captain doesn’t steer the ship; the person at the helm does, and they may be given a free hand in how the course change is executed.  They should turn carefully or they could damage the rudder, which is used to steer the ship.

In making the maneuver, the ship is supposed to follow the rules for navigation.  That keeps the ship and other vessels safe.  A careful turn also allows people on board to adjust.

That’s how it is supposed to work at sea.  How is turning the country around being managed by Captain Trump?

Trump changes directions fast, and his commands are causing some immediate problems.  He does not want the government to slow down, so the U-turn is both abrupt and potentially dangerous.

The shipowners’ representative, the U.S. Congress, worries about the sudden course change, but Trump has begun operating the government in ways that may violate laws passed by Congress.  He risks being held to account by it at some point, which may explain why he wants to execute the change in direction as quickly as possible, while Congress is muddled.

He has placed Elon Musk at the helm, giving him broad authority over changing the direction of government. The new crew, many with little government knowledge, is recruited based on their loyalty to Trump.  Musk runs his own businesses as he wishes, but he lacks experience with the more complex federal government or following congressional requirements.

Musk has swung the helm so hard that some people have been tossed overboard, maybe his intention.  The person who operated the multi-trillion-dollar federal payment system independent of politics is such a casualty.  Entire executive agencies are being pushed overboard, breaking through congressional lifelines.  Musk’s private-sector crew acts without restraint.

Meanwhile, there’s turmoil on board.  Commands from the White House may miss operating realities and their full effect.  Trump ordered a halt to much federal spending without realizing that he had gone even beyond his own intentions.  When he issued the order, the ship shuddered. 

He rescinded his command, but the defunding may not have stopped.  A federal judge questioned whether the decision to cut spending is still in effect, even if the order has been recalled.  After all, this captain does not like to change his mind.

Not only does his swift course change violate international rules and U.S. treaties, but it can harm other countries.  Agreements exist to prevent conflicts, but the new American crew seems to dismiss treaties. Trump even changed the name of a major international waterway, calling it the “Gulf of America” without first talking with other nations using it.

Not yet having completed the change of course, Trump’s ship began lobbing missiles in the form of tariff threats at neighboring, traditionally friendly vessels.  He attacks Canada and Mexico and threatens Europe.  Inevitably, they would retaliate, while swerving away from the U.S., after a dangerous bluff that may cost America loyal allies.

Captain Trump not only wants to change the course of the U.S. government, but he wants to remodel the country itself.  Though his navigation correction may be short-sighted, he may also have long-range intentions for countries ranging from Panama to Denmark.  He has the absurd and insulting idea that Canada, a world player, can be reduced to becoming the 51^st state.

Just as was believed when the U.S. isolated itself after World War I, Trump believes that America’s power can control events worldwide.  Elected under the banner of “America First,” his message is translating into “America Most” at the expense of others.  He deploys tariffs, but doesn’t rule out the use of force. 

Just as before, this policy ignores the ability of other countries to change course, not always for the best.  His policy may turn into “America Alone” and the consequences are unknown.  The aftermath of the original “America First” was Pearl Harbor and World War II.

Even without planned globalism, nations have become interlinked over the last 80 years.  No matter Trump’s intentions, no single country can pull all others along in its wake.

But there’s even more at risk than overly aggressive Trump-Musk navigation. This rapid course correction could damage the rudder – the American political system. 

Trump uses power of purse to control states

 

Gordon L. Weil

Donald Trump promised that, if elected president, he would make big changes.  He claims to keep his promises, and he surely is keeping that one – and fast.  He interprets his win as the nation’s endorsement of massive change.  The speed and scope of his moves have stunned the country.

Among his lightning moves is one meant to reshape the relationship between his federal government and the states.  This could be huge, though it was not a prominent part of his package of promises.  Beyond using almost unlimited presidential power to remake the federal government in his own image, he also wants to bring the states into line.

Trump can pressure states, whether Democratic or Republican, to accept his priorities by using the power of the purse. If a state, especially one that has not backed him, wants federal funds that are doled out by his executive branch agencies, it might have to meet his conditions. 

Federal funds, appropriated by Congress for many programs, flow to all states.  Decisions on specific outlays under a federal program are left to individual states.  Each state can deal with its own problems in its own way and can be held responsible by its own voters.

Congress gives the president and executive agencies wide discretion in distributing the funds.  The agencies and their inspectors general are expected to make sure states spend the money as intended by Congress.  But last week Trump, jumping legal procedures, fired 18 independent, departmental inspectors general.

Visiting North Carolina, Trump promised federal aid to deal with hurricane impacts and extensive federal involvement in the recovery.  Then, in fire-stricken California, he conditioned federal emergency funds on changes to the state’s voter identification system and water management policies.

North Carolina backed him for president, while California remained loyally Democratic.  It looks like he rewarded one and punished the other.  About 42 percent of  the American population lives in Democratic states. While those states might resist Trump’s domestic policies, his administration could force them to follow his policies or lose federal funding.

Consistent with that approach, he proposed eliminating the Federal Emergency Management Agency and replacing it with direct grants to the states.  That way, states would assume lead responsibility for disasters.  They already have that role and FEMA supplements them, but his moves could give him political power over the states that FEMA can’t exercise.

Favored states might gain considerable freedom in spending federal aid.  To receive urgently needed support, Democratic states could be forced to adopt Trump’s policies, even if far removed from the intent of the funding, or lose out.

Kristi Noem, then governor of South Dakota and now Trump’s Homeland Security Secretary, provided the model.  She used a small part of Covid relief funds for state government costs and applied the balance at her discretion rather than helping people and companies that had suffered losses from the pandemic. 

She also refused federal funds, when she disagreed with Biden’s policies.  While Democratic states might similarly refuse Trump, they can’t afford to decline the massive aid necessary to meet enormous disasters.  California faces the choice between either accepting the president’s conditions or paying overwhelming emergency costs.

The problem with refusing the money is that California’s federal government contribution could go to other states, while it gets little.   It may have to raise state taxes for emergencies, while Trump’s elimination of FEMA may provide him with money he needs to extend costly federal tax cuts.

That’s how Congress does business.  States vie for as much money as they can get at the expense of other states.  After Sen. Susan Collins became the chair of the Senate Appropriations Committee, attention in Maine focused more on the added dollars she can bring home than on her increased ability to influence national priorities.

Maine gains large federal subsidies, being a winner like almost all small states.  Most small states are Republican, so that could work for Trump.  Collins is the sole GOP member of Congress from New England, so Republicans might want to help her with the state’s voters by meeting Maine’s needs with other people’s money.

Making states more dependent on the president and less able to act independently steps away from the original constitutional formula.  The states intended to cede limited powers to the federal government, but they have become its dependents.  This change plus the fading role of Congress, has increased presidential power.  Checks and balances don’t matter.

As much as Trump may wish that he could serve a third term, his use of presidential power and his reshaping the ways the federal government adopts and executes policies could extend his reach well beyond his current term.  Change has come.  His successors in either party are likely to accept and continue many precedents he is creating in the name of MAGA.

 

 

Foreign policy by threats has high cost

 

Gordon L. Weil

Donald Trump conducts foreign policy by threats.   If you don’t do as I demand, he implies, I will simply take you over.  Forget about pursuing traditional diplomacy with friendly nations.

Bullying may work on real estate competitors in New York City, where Trump gained his education in his father’s business, and the volatile world of local commerce allowed him to crush competitors.  

Real estate moguls may come and go, but sovereign nations tend to hang on tenaciously.  Look at Ukraine.  Still, you may dream of your place in history by expanding American territory.  Meanwhile, your diplomats can demand concessions from others by warning them about the president’s unpredictability if they don’t yield.

Trump’s threats may be false, but he uses intimidation as the shortest path to getting what he wants.  Beat up Denmark about Greenland, Panama about its canal and Canada for its supposed dependence on the U.S.  Even if his real goals are unknown, as the powerful leader of a powerful nation, he tries to pressure friendly nations to bend to his will.

In one aspect of this approach, Trump seems to believe that when one country sells more goods to another country, their margin represents a subsidy – getting something for nothing.  In fact, each country gets paid for its products.  It looks like the U.S. should always have a favorable trade balance with others and not “subsidize” anybody.

That policy doesn’t account for trade in services and cross-border investments. It also ignores the mutual benefits that can flow from trade, but measures only money and even that only partially.  It is virtually impossible for a country to have a neutral or favorable trade balance all the time with everybody else.

Trump’s remedy is to boost the prices of imports by imposing tariffs.  If foreign suppliers want to avoid being priced out of the market, they must swallow the tariff.  Otherwise, when tariffs boost their prices in the export market, domestic producers can raise both their prices and their sales.  Either foreign producers’ incomes are cut or American customers pay more or both.

Trump bullies Canada, which he claims without evidence that the U.S. “subsidizes” by $100 billion a year.  He threatens to raise tariffs on imports from Canada to cut the subsidy, and force it to increase its military spending and border controls. 

Trump’s crude and insulting solution is that Canada should become the 51st state.  One Canadian counters that Canada should absorb some U.S. states, including Maine.

Does the U.S. pay more to Canada than it receives? 

In 2023, the U.S. bought about $64 billion more goods from Canada than it sold there.  Canada paid $23 billion more for American services than flowed the other way.  That left a U.S. trade deficit of $41 billion.  But Canadian investment into the U.S. was $77 billion more than U.S. investment into Canada.  (There’s no U.S. foreign aid to Canada.) 

The net result was a favorable U.S. balance of payments with Canada.  Trump chooses to ignore the full facts, the essential details showing there’s no $100 billion “subsidy.”

Canada’s vast territory provides a protective buffer for the U.S., like the Atlantic and Pacific Oceans.  But it needs to boost its military spending.  Trump is right in saying it leans too much on the U.S.  And he has already succeeded in inducing increased Canadian border protection.

To accomplish his objectives, Trump has alienated many Canadians by devaluing their loyalty to their own country. You don’t have to be American to think your country is great. By insulting a close ally and its leaders, Trump may prevail on some current issues, while sacrificing a highly valuable partnership for the long term.

If Trump raises tariffs on Canadian goods, Canada has plans to retaliate dollar-for-dollar.  A trade war only leaves victims and no real winners.  It would harm the relationship for many years, reducing Canadian trust in its “neighbour” (even their spelling is different).  Trump dismisses cooperation to confront China, their common adversary. 

Does Trump really believe that Canada’s ten provinces would readily join the U.S. as a single state, and that Canada would simply drop its own national identity, foreign policy, health care system, gun control, and abortion law, just to avoid high American tariffs or confrontation with him?

Trump’s policy of “America First” must inevitably turn into “America Alone.”  Canada would focus increasingly on trade with other countries.  The European Union, which includes Denmark, might either build its own defense arrangements or see the rise of anti-American nationalism in countries there, leaving the U.S. with fewer reliable allies in either case.

Whatever may be gained by bullying rather than negotiating could come at the loss of long-term trust among allies.  That would be a high price to pay by the U.S., long after Trump’s “America First” has faded.

 

 

Trump ran parallel presidency as Biden faded

 

Gordon L. Weil

A change in the political system is happening, but we are paying little attention to it.

Donald Trump, an agent of political change, has challenged the belief that the U.S. can only have one president at a time. Since the election, he has operated a parallel presidency.

A formal transition process exists in law, allowing for the incoming president and his appointees to be subject to specific ethics rules, to use federal office space and to receive financial support.  They can become current on department policies and actions. But the president-elect does not have to accept this process.

While the incoming president is not bound by previous policies, awareness of the current administration’s latest moves could enhance the chances for a smooth transition. But Trump wants to symbolize change, and cooperation may not suit his image.  He spurns transition and acts as if he is already in the White House.

Three reasons stand out.  First, Trump has already served as president so he can hit the ground running, without needing a basic White House education.  Second, Trump will head probably the most personal presidency, relying less than usual on precedent and advice than on his own instincts.  Third, President Biden is fading, creating an opening for his successor.

Biden has readily let him dominate the scene.  His departing administration is cloaked in the aura of its defeat rather than pride in its principles.  His cabinet has melted away, failing to react to Trump’s assertions. Biden failed to make his presidency the promised bridge – a real transition.

Though Biden still uses his inherent powers to deal with disasters, pardon people and issue executive orders setting his parting benchmarks, Trump has taken over large pieces of foreign and domestic policy.  Biden’s cabinet and actions are overshadowed, if not downright ignored.

Few resist the need to deal with Trump’s upcoming presidency as if he were already in office.  From Republican House members to foreign leaders, they have sought to curry his favor and divert any possible concerns he has about them well before his ability to take office, beginning next week.

Trump has moved decisively to transform the period between Election Day and Inauguration Day.  The so-called lame duck government of that transition period has become almost a rare bird.  By his actions, rather than through a formal constitutional amendment, Trump is redefining the transition for the second time in American history.

Originally, the presidency and the new Congress began on March 4, following the previous year’s November elections.  Given slow communications and travel, the delay was necessary to allow for vote counting and the arrival of newly elected officials in the capital city.

The result was that a president who might be slated to leave office and the sitting Congress could remain in power for months even if they had suffered election defeats.  That lame duck period could allow a departing administration and Congress to push through policies that might already have been rejected by a majority of voters. 

Newly elected presidents and members of Congress waited their turn and prepared to take office. That had to change.

Following the 1932 elections, voters clearly demanded action by the federal government in dealing with the Great Depression.  They had become impatient with the transition.  President Franklin D. Roosevelt used the time to ready measures he could put in place rapidly once he took office – the famous first 100 days. 

The delay also brought the end of the long-legged lame duck.  Under a new law, Congress would begin on January 3 and the presidential term would start on January 20, dates now set in the Constitution.

Twenty years later, President Truman offered to provide intelligence briefings to President-elect Dwight Eisenhower.  Truman’s first move led to a formal transition process, which has been expanded under the law.  

Because it is voluntary, Trump refused its ethics requirement or to be fully informed on current administration actions.  He chose to make the break between administrations both disruptive and preemptive.  In effect, he has improperly moved the government from Washington to Mar-a-Lago.  He has led the alternate government, not the government in waiting.

The refusal of the incoming president to participate in a transition comes at a price, especially when it relates to foreign policy.  The failure of an incoming administration to exchange information on its foreign contacts or its attempts to blindside the incumbent can be harmful to the conduct of delicate and complex relations.

Trump has drastically shortened the transition, which may have been inevitable.  But he has also made a mockery of its useful aspects.  Transition should not be left to the president-elect’s choice. The country would be better served, without limiting the incoming president’s discretion, by making their full participation mandatory.

The U.S. really should have only one president at a time.

Trump would bypass Congress, Court in TikTok case

 

Gordon L. Weil

We have front-row seats for a major fight, perhaps the constitutional Fight of the Century.

Three contenders are in the ring, each a heavyweight.  They are the Congress, the Supreme Court and President-elect Trump, who just got involved.  The outcome could reveal which of them wields the greatest power.

Last April, Congress passed with overwhelming majorities, including all four Maine members, and President Biden signed a law ordering ByteDance, the owner of the social media giant TikTok, either to sell it or shut it down.  The new unconditional federal law gave ByteDance until January 19 to act.  The president is ultimately responsible for carrying it out

China has a record of stealing or accessing U.S. data.  This week, the Treasury Department reported a “major incident” of Chinese hacking.  China has been formally designated as an American adversary.

Congress, Biden and former president Trump have all expressed concern about the control of ByteDance by China of a company that has access to personal information of millions of Americans.  While he was president, Trump tried to shut it down, but was blocked by the courts.

But ByteDance understandably opposed the law, so it challenged it on the grounds that Congress had exceeded its authority under the Constitution.  Because the First Amendment is meant to prevent government interference with freedom of speech, it claimed that Congress had gone too far.

If ByteDance did not divest, the requirement to end the millions of communications that take place on TikTok would amount to federal control of speech.  The company also stated that it is owned by international shareholders, not the Chinese government.  But Congress had decided that China controlled it, and that decision is not the key issue.

The case went first to a three-judge panel of the U.S. Court of Appeals in Washington.  All three found that Congress had not violated the Constitution, because it acted in the interest of national security.  The judges had been appointed by presidents Reagan, Obama and Trump, making it difficult to call its ruling partisan.  ByteDance appealed to the Supreme Court.

The Court is trying to act quickly on the appeal.  It must decide whether Congress exceeded its legal powers, but it will not decide if TikTok must close.  That is a judgment for ByteDance, which could resolve the matter by selling, though the law requires it to have a buyer lined up by January 19.

If the Court decides that Congress acted constitutionally, then ByteDance must quickly act.  If it finds that Congress exceeded its powers, ByteDance may continue to operate TikTok.

President-elect Trump’s lawyers recently requested that the Court delay its proceedings until after he takes office on January 20. They claim that Trump is uniquely qualified to negotiate a resolution of the issue of China’s control.  In effect, Congress and the Court should back off and turn the matter over to him. 

Trump’s last-minute move seems to ignore the fact that the law takes effect if not declared unconstitutional.  He might try to avoid that point by quickly deciding that China is not an adversary of the U.S., despite earlier findings by Biden, Congress and himself.

During the 2024 presidential campaign, Trump became quite popular on TikTok and told voters that he would not let it close down.  This may be the reason why he has changed his views on its threat to America security and the privacy of its users.

Trump has put the Supreme Court and most of the GOP members of both the House and Senate on the spot.  In effect, he has asserted that both his role as president and his superior powers of negotiation should displace the normal legislative and judicial operations of the federal government.  On January 19, Trump will not yet be president, so can he now make this claim?

When the Court decided that the president has almost unlimited powers, it might not have thought he would want the Court itself to defer to him.  Now, the Court is on trial and will reveal how it reacts to his pressure to step aside and let him settle the matter.  If it gives Trump what he seeks, it would surely have to be seen as a partisan, political body.

He would ignore a law backed by his own supporters, who responded to his opposition to China.  That’s possible, since he has explored ignoring another long-standing law that limits presidential spending powers.  His unusual Court filing is extravagant in its self-praise, making it appear that he deserves deference not usually given to presidents.

The conflict is about whether Congress acted constitutionally, if the Court should suspend acting  when asked by the president-elect, and if the election empowers the president to rule rather than to govern within a system of checks and balances.

All that makes for a big fight.

Trump's tariffs: both good and bad

Gordon L. Weil

Many years ago, I found myself in the middle of an international war.

As tough as each side was, I was fortunate that the ammunition was not bullets.  It was chickens.

The U.S. was the major supplier of chickens to Europe, but the organization now called the EU or European Union wanted to promote its own production, mainly in Germany.  So, it increased its tariff on imported chickens.  American producers protested, and the government retaliated by raising U.S. tariffs on several products.  The result was the “Chicken War.”

The most important U.S. tariff was placed on trucks with the aim of cutting imports of VW vans.  But trucks from all over the world were affected.  Eventually, tariffs on other items, including chickens, were either dropped or lost importance.  But the tariff on trucks remains, decades later, though some foreign producers learned how to dodge it.

As the sole American on the EU staff, my role was to improve understanding between the U.S. and Europe and help defuse the conflict.  Eventually, EU President Walter Hallstein met with President Lyndon Johnson.  Acting on behalf of the Europeans, I had the unusual opportunity of negotiating with the State Department the joint statement of the two presidents.

The moral of the story is that tariff wars have consequences.  Trucks are probably more expensive in the U.S. today thanks to the surviving tariff and because American producers could raise their prices when faced with less competition from abroad.   The Chicken War was hardly just chicken feed.

President-elect Trump likes tariffs.  He sees them as both a threat and a promise.  He seems reluctant to accept that they drive up prices and are likely to bring retaliation that will reduce U.S. exports.  Because other countries can sometimes sell Americans essential products or have lower costs of production, he claims the U.S. is subsidizing them.

Beyond economics, Trump clearly would use tariffs as an instrument of foreign policy.  If he wants a country to halt the flow of immigrants or drugs or even to increase its own military spending, he uses the tariff threat to force change.  Trump’s surprising style, untethered to tradition, can cause others to take his threats seriously. 

Aside from the impact on exports and imports and on consumer prices, the liberal use of tariffs may bring political and economic change.  Trading partners will look for alternatives and not merely submit.

He threatens both Canada and Mexico with higher tariffs unless they stop illegal immigration.  As a result, they may take action even before he takes office.  But the U.S. depends heavily on Canadian crude oil.  If a 25 percent tariff were added, U.S. refineries and their customers would pay more.  And Canada can redirect some sales to Asia.

Trump may do a lot to boost European unification.  Europe is equal to the U.S. as a market, so it could absorb much of its production that can’t enter the U.S.  Higher world prices created by the Trump tariffs would be an incentive for the Europeans to step up their own production to displace American imports.

The aspect of tariffs that holds promise for Trump is that new federal revenues would be collected at the border.  His assumption must be that imports will not be slowed by higher tariffs, so they could create the income necessary to finance the federal government, which meanwhile would be cutting income taxes.

For the moment, that’s pure theory.  Tariffs drive up prices unless foreign suppliers swallow them.  In practice, imports decline when imported goods cost more. Lower imports may produce lower tariff revenues. The revenue effect is greater when the tariff increase is greater. So, tariffs may not be quite as magical as Trump seems to believe.

Yet good reasons exist for raising some tariffs.  That happens when Americans are willing to pay more for goods through a tax disguised as a tariff to achieve national policy goals. 

If the U.S. is concerned about excessive dependence on imports of essential goods, aiding domestic producers or ensuring worldwide environmental standards, greater tariff protection may make sense.  Labor unions oppose trade deals because jobs may be shipped abroad.  But helping workers comes at a price.

China profits from exploiting its own labor and using its polluting coal to produce low-cost goods for American merchants.  Its gains pay for increased Chinese military spending used to expand its influence, threaten Taiwan and to menace the U.S. and its allies on the seas. 

It makes sense to cut China’s sales to the U.S. to level the playing field and reduce its funds for military expansion.  Customers may willingly be taxed for this effort.

Trump’s tariff threats may sometimes work, but their effect goes well beyond raising consumer prices.  Higher tariffs have both economic and political effects, sometimes long-term and often not obvious.  

Trump's trifecta: Congress, states help

Gordon L. Weil

Trifectas are not only for racetracks. 

At the track, you win a trifecta bet by picking the first three finishers in order.  The pay-off is usually big.

In politics, trifectas also exist.  That’s when one party controls the executive and both branches of the legislature.  President-elect Trump will have one.  That could give him a big payoff in presidential powers.

The scope of Trump’s victory cannot be measured solely by his big margin in the electoral vote or his narrow margin in the popular vote.  The voters did not split their tickets and gave him a Republican Congress free from any Democratic check on him. What made Trump’s win so large was his undisputed win and having a potentially compliant Congress.

A trifecta-plus occurs when a majority of the highest court sides with a trifecta party in power.  Given the conservative, sometimes openly partisan, majority on the Supreme Court, Trump could enjoy that kind of government.  Its decision on allowing considerable presidential immunity gives him broad discretion to skip applying the law or to rule by executive orders.

Political trifectas often exist at the state level.  Next year, 23 states will have Republican trifectas, 15 will be Democratic and 12 states will have divided governments.  In terms of population, 42 percent of the people live in Democratic states and 41 percent in GOP states.  Maine is a trifecta state, and the Democrats frequently dominate, as they will again in 2025.

While there will be some defectors, most Republican trifecta states can be expected to follow Trump’s lead, adding to his power. When he seeks their involvement in enforcing his immigration policies, they are likely to provide help in finding and expelling illegal immigrants.  These states could multiply the effect of his federal actions on other issues as well.

During Trump’s first term, Democratic states managed to avoid action on some federal government demands.  That administration had moved too quickly to put Trump’s platform into effect.  Its hasty work was sufficiently sloppy that Democratic state administrations could find and exploit loopholes.

The new Trump term promises to be somewhat more professional and based on more than loyalty alone.  His appointees should pursue his goals, but may be able to develop their own methods.  If he micromanages or impatiently demands immediate action, he may not avoid the same kind of errors he previously made.

One federal law may somewhat slow Trump’s progress.  The Administrative Procedure Act may sound dry, but it can be an effective way of slowing sweeping change.  Government agencies may add or drop a rule only if they can justify their plans and allow for public comment.  The APA process takes time.

The president, no matter his mandate, must follow the law.  Some states will inevitably challenge Trump’s moves in federal court.  Washington State often brought actions during the first Trump term, winning 55 separate cases.  Such proceedings can serve to slow changes. 

Ultimately, the conflict between the Trump administration and Democratic states is likely to boil down to a dispute about one of the key parts of the Constitution.  It’s called the Supremacy Clause.

While the original states believed they were delegating only some of their sovereign powers to the federal government, that clause has given Washington great powers over the states.  It says that laws enacted under the Constitution are “the supreme law of the land.”  Such laws may simply overrule state laws.

In practice, the federal government has moved into areas that the Framers may not have thought would be taken from the states.  That opens the question of whether a state is blocked from all independent action on a matter or if it shares authority with Washington. 

Can a state accept the federal rule, but go beyond it by being even more strict?  The question is whether the supremacy clause can preempt any state power or allows states to exercise sovereignty alongside the federal government.  Cases are likely to be decided one issue at a time.

If all of this sounds like the making of a legal mess, it is.  It surely could slow federal action, though the Supreme Court has been quickly issuing procedural orders that could be favorable to Trump, even while its final decisions may take many more months. 

In the end, conflicts between Trump and the Democratic trifecta states may be settled by the Supreme Court.  The Court decides what the Constitution means. It seems likely that, given the current Court’s pro-Trump leaning, its decisions in supremacy clause disputes would result in judgments favorable to the president.

The Supreme Court could allow Trump to force Democratic states to follow his agencies’ orders. American politics could be arriving at government under a federal-state, trifecta-plus regime.    With that kind of wall-to-wall control, Trump would hold the winning trifecta ticket. 

Signals from the 2024 elections

 

Gordon L. Weil

The pollsters have gone into hiding to lick their well-deserved wounds.

The pundits are desperately assigning blame for the Democratic defeat, while admitting that Trump was a better candidate than they thought.

Beyond the false forecasts and short-time wisdom, a variety of signals emerge from the elections. 

First, my “told you so” statement.  Last December, I wrote that the election would not be between Biden and Trump.  I then wrote that the election would not be close. And I wrote repeatedly that polling results were false, conjured up by pollsters, and not a good measure of opinion.  All true.

Now, down to business.  Here are signals from the elections.

Whatever you think about his message, Trump came across as telling you what he really thought.  He declared that he would say what he wanted, no matter the advice of his strategists.  He generated an aura of sincerity that is almost extinct among political candidates.  In my experience, the early Ed Muskie was like that, and that could be one reason he succeeded.

Money in politics matters, but not without limit.  People will take just so much repetitive advertising or endless pleas for contributions.  To no avail, the Harris campaign amassed more than Trump, despite his big backers.  There is a point of saturation, which comes when people have heard enough.  Billionaire backers and huge war chests can overkill. 

One reason why polling falters is that the relatively few people who agree to talk often lie.  Pollsters reported that in 2016, people fibbed about their support, because they did not want to admit they backed Trump.  That may have been true this year as well and explain why his victory was unforeseen.

Members of politically identified groups, everyone from Poles in Pennsylvania to Muslims in Michigan, may not necessarily see themselves as members of narrow constituencies, but more like average Americans.  If bread is too expensive for middle-class Americans, it is also expensive for target populations.  Apparently, a lot of people agreed on that.

Campaigns often focus on Latinos, who are assumed to see discrimination against Latin American immigrants as their overriding issue. The same may be true for other ethnic groups. Assuming that minorities would back Democrats, simply because they are minorities, may miss the innate conservatism of many such people.  Too much political slicing and dicing, perhaps.

The parties may be fading.  Lawn signs omit party affiliation, formerly a sign of loyal support.  Elections may be more about persons than parties.  Once, the national party chairs were the prime “slash and burn” campaign representatives, allowing the candidate to remain more elevated.  They are almost unknown these days.  Trump’s daughter-in-law co-chairs the GOP.

Trump will be strongest in 2025.  Presidents usually enjoy the greatest deference in their first year, so next year could be the best time for him to try to push his policies, especially while enjoying strong congressional support.  

The following year is another election year, the mid-term when an incumbent president usually loses some congressional support.  Re-election campaigns may reflect the influence and effects of Trump’s policies.  The Democrats could see a chance to retake one or both houses as the best way to control some of his moves.  Expect to see presidential-level campaign spending.

JD Vance may be more in focus than the usual vice president.  As he ages, Trump might find Vance’s visibility helpful, especially in 2026.  And he may bear closer than usual scrutiny, as the possibility of his having to step into the Oval Office increases.

Trump may test the extent of the extreme political powers that the Supreme Court has given him.  Will he be the “day-one dictator” or will he perceive political risks in going too far?  While the Democrats may push back, the real question will be whether Congress reasserts itself.  Congressional renewal, desperately needed, could be a bi-partisan concern.

The role of Congress will depend heavily on the Republican leaders.  House Speaker Mike Johnson has clearly aligned himself with Trump. The Senate GOP will soon select a new Majority Leader who could influence the president or simply fall in line.  This impending selection may provide some hints about the Trump-Congress relationship.

Leadership is the big challenge for the Democrats, which have no obvious national chief.  A new image is needed, possibly to lead the 2026 campaign effort.  The Democratic National Committee may have to stage an informal version of the presidential primary the party never had. It could gain from having a spokesperson who acts as leader of the opposition from outside of Congress.

This list suggests the election has left much American voters do not know about their political future.  It is likely to differ from recent political tradition.   Trump is defining the GOP message.  The Democrats need a new message of their own.

 

 

Trump win confirms America’s political change

 

Gordon L. Weil

American political history has reached a turning point.

So, too, has the country’s moral sense, at least about politics.

But that did not happen this week.  It happened eight years ago, when Donald Trump was first elected president.  Any doubt was erased by his victory and the powerful vote for Republicans across the country this week.  Except for the coasts, that win was national.

Just as in 1933, when President Franklin D. Roosevelt and his New Deal changed the country, so have Trump and his intent to “Make America Great Again.”  For FDR, the emphasis was on a “new” start while for Trump the emphasis has been on greatness “again.” 

Before FDR, the nation had been essentially conservative.  The private economy dominated and the role of government and individual rights were limited.  The economic crisis of the Great Depression and World War II forced change. The New Deal era and American post-war world dominance transformed people’s thinking.

By 2016, Trump had absorbed and embodied the increasing public sense that the country had gone too far beyond its conservative origins.  Whether he exploited that sentiment or truly believed it did not matter.  He came to be the flag around which the people yearning for the political norms of the past could rally.

That realization was more than the supporters of the politics and institutions of the New Deal era could readily accept.  Government was the main tool by which Americans took care of one another, and it was difficult for them to believe that cutting its cost would assume a higher priority than increasing or even maintaining its services.

The political aberration may not have been the 2016 election, but the 2020 election when the old guard barely clung to office.  Looking back, it becomes less difficult to understand how bitter it was for Trump and his backers to accept Joe Biden and company who stood as obstacles on their path to changing the country.

This year, Democrats believed they could snuff out Trump’s movement, because of their appeal to growing segments of the electorate and on the abortion issue.  The rushed selection of their candidate, made necessary by a president who ignored his own failings, left them running on the hope that the people would inevitably recognize Trump as a mistake.

They ignored the scope of the belief that the government had gone too far, too fast.   Social change, focused mostly on the sexual identity of some people, was not yet acceptable to many.  The lack of control of the border, seen by some as the government’s intent, created national uneasiness.   Democratic progressives, buoyed by a few election upsets, overreached.

American politics have fundamentally changed, and Trump has been able to take advantage of it.  Originally, Congress was supposed to be the dominant power of the federal government, not the president who had replaced the British king.  Parties were not expected to matter as much as the balanced institutions with their built-in checks.

In 1992, Newt Gingrich, the House Republican leader, set out to change the system.  GOP members of Congress would commit to acting like a bloc and would loyally back the leader of their party.  In effect, the U.S. would adopt the parliamentary system.  It has worked and congressional Republicans, whatever they may think of Trump, are totally loyal to him.

This year, the power of the president was further boosted by the decision of the Supreme Court that the chief executive could exercise almost unchecked power.  The appointed Court, confirmed by the president’s party, became a prime driver of presidential dominance.

Underlying the changes that are taking place is a reversal of what had come to be accepted political morality.  It has been a version of the Golden Rule: “Do unto others as you would have them do unto you.”

In practice, that meant there were certain unwritten understandings about political behavior.  The Constitution could not describe every possible form of government conduct, but the early leaders believed that certain customs would be observed.  They could not suspect that acceptable behavior would change as much as it has.

Trump was clearly behind the assault on the Capitol.  He radically denies undeniable facts.  He savagely attacks those who oppose him and shows no respect for many people who have earned respect, even if they disagree.  The way he denigrated John McCain, an American hero of unlimited courage, went beyond civilized bounds.

If not dead, the constitutional culture is seriously wounded.  Unwritten understandings are readily repealed. The Trump goal is nothing less than the transformation of government.

Voters may be ready to believe that Trump does not mean what he says when he lashes out or that he cannot carry out his threats, but they may find his claim is true: he will be a president unlike any other. 

'Deep state'over shadows election; it's about presidential power

Gordon L. Weil

The “deep state” is neither deep nor a state.

Let’s “drain the swamp” to wash the mythical “deep state” down some cosmic hole.

If you succeed, what’s left?  Probably a smaller swamp.  And a one-person government operating openly to serve the purposes of that one person.

That’s what people mean when they warn about Donald Trump being a threat to democracy.  The American form of democracy is really a myth in his view, and the country is controlled by a hidden alliance between anonymous government officials and outside interests pursuing their own agendas. 

The “deep state” conspiracy lacks evidence and is designed to stir what a renegade journalist once called “fear and loathing on the campaign trail.”  This column now reveals the people behind the deep state: two U.S. presidents.  Ever hear of Chester Arthur?  Or Grover Cleveland?

In 1871, President Arthur, a Republican, took on the so-called “spoils system,” derived from the saying, “to the victor go the spoils” – if you win the election, you can shape the government to your will.  Too bad for people who don’t agree with you; they lose the protection of a government meant to serve all.  It was a form of legal corruption.

Arthur launched the civil service, a continuing corps of officials who maintain basic standards and operate essential programs, regardless of who is president.  The civil service, composed of government professionals rather than political loyalists, would allegedly become the in-house half of the deep state. 

A few years later, President Cleveland, a Democrat, approved the first independent federal agency, designed to regulate interstate railroads.  Independent agencies, run by expert panels with both parties represented, came to control complex matters beyond the ability of Congress to monitor successfully.  These experts cannot be removed for purely political reasons.

Trump doesn’t like the civil service or independent agencies. 

He seems to believe that the supposedly neutral civil service harbors people who oppose his policies and work to undermine his efforts.  His suspicion of barely hidden partisanship may be fueled by the heavily Democratic vote in D.C. 

The simple solution would be to strip people of civil service protection and replace them with loyal followers of White House policy rather than congressional intent.  That would expand presidential power.  Each election could result in sweeping changes in government with little consistency or reliability over the years.

As for independent agencies, a president might be able to overrule or influence their decisions.  Presidential power would come to dominate independent agencies, which in reality exercise delegated legislative power.  The shift of power from Congress to the president would continue.

But, even more significant, is the assault on independent agencies by a conservative Supreme Court, dominated by Trump’s appointees.  The Court is now severely weakening independent bodies, and this term will consider a case that could result in ending their regulatory authority.

Previously, the Court had allowed expert agencies to interpret the details of the laws under which Congress assigned them regulatory responsibilities.  The Court has now decided that the agencies should not have such powers.   Who can determine the meaning of the regulatory laws?  Why, it’s the courts.

The problem is that the courts lack expertise. In a recent majority decision, one Supreme Court justice mistook nitrous oxide for nitrogen oxide, substituting laughing gas for a dangerous chemical.

Aside from overruling the expertise of independent agencies, whose knowledge is beyond the abilities of the courts, the Supreme Court will now consider whether their ability to punish violators is beyond what the Constitution allows.  It could decide that such authority rests only with the president and the courts.

These attacks on neutral and independent components of the federal government are an attempt to strip Congress of the lawmaking power given to it by the Constitution.  The assault has been made possible by Congress itself shedding its authority, dodging major decisions and leaving them to others.

The elections will give people the chance to decide if they want a smaller government that offers them less protection and less regulation or the current system, as imperfect as it is.  Whatever the outcome, popular disapproval of Congress sends the message that the system needs reform.

The most obvious improvement would be for the unpopular Congress to begin doing its job. Many judgments now left to civil servants (those dreaded “bureaucrats”) and independent agencies could be eliminated by more simple and direct legislation, denying the special interests’ deals by not allowing for exceptions or special situations.

That could help ensure that the unseen parts of the deep state – corporate lobbyists working over regulators outside of the public view – would leave them only the public proceedings of Congress to press their demands.

An effective Congress, passing no-loophole laws, would be better than the personal rule of any president abusing their powers.