Supreme Court threatens independent agencies

Gordon L. Weil

America grew up and, just like a child growing up, it found that life becomes more complicated.

After the Civil War, Congress devised ways for the government to manage increasingly complex issues.  The Supreme Court is now deciding if this long-standing solution – the creation of independent agencies – is acceptable.

The Constitution gives Congress the power to pass laws on any matter under federal jurisdiction and to test the limits of that jurisdiction, both subject to judicial review.  Presidents can propose laws and approve what Congress did, but their powers do not extend to make them legislators.

The three branches of government lack the time and expertise to regulate a wide range of issues.  While Congress could in theory legislate on individual cases, in practice that’s impossible.  Legislators cannot deal with matters extending from the safety of medications to the control of airplane flights to consumer protection.

The solution has been to delegate legislative and even some judicial powers to independent agencies. In theory, they act on behalf of Congress, not the president. The president appoints members of independent agencies, subject to Senate confirmation.

Because there are only three branches of government, the independent agencies came to be considered as part of the executive branch, even though they exercise few executive functions.  They may make rules for their own operations, but, even then, Congress may choose to disapprove them.

Independent agencies are usually composed of boards whose members are experts in the subject matter under their legislative mandates.  They make informed judgments about the application of the law to specific activities over a wide range of issues.  Where the law is unclear, they may interpret its meaning.

This system has come under political attack.  For those who argue that presidents have all executive authority (the unitary presidency), the independent agencies must be under his control, because they are assigned to the executive branch.  Without presidential authority over them, the agencies may constitute the “deep state,” a part of the government escaping normal control.

If this view is correct, then the agencies are not truly independent.  Their expertise can be overruled by the political agenda of the president.  They become functionally a part of the president’s administration.  The courts retain authority to determine if an agency acted outside of its authorized powers or unconstitutionally.

The Supreme Court has begun to deal with the issues raised by this demand for a new look at independent agencies. Its focus has been on (1) the president’s ability to replace members, even with fixed terms, to suit his policies, and (2) the agency’s ability to interpret the laws applying to its jurisdiction. 

The Court has already ruled that the president can remove the head of an agency if there is only a single person in that position. 

It is now asked to reverse a position it adopted in 1935 and allow the president to remove members of boards of agencies exercising legislative functions .  President Trump has recently removed two Democratic members of independent agencies, who are challenging his action. Could presidents remove members only for allowed reasons or can they do so at will?

The Supreme Court has already overturned an earlier decision and ruled that the courts and not the agencies will determine questions about the meaning of the laws they apply.  That decision could narrow the scope of agency decisions.

If the president can remove the heads of independent agencies and the courts can determine agency jurisdiction, the delegated legislative authority would be fatally weakened.  The only power left to Congress would be to establish agencies for specific purposes, much as it now does for executive departments and their subordinate offices.

In short, the Supreme Court could effectively end the role of independent agencies.  Presidents would be able to substitute their political will for the judgments of experts, eliminating the “deep state.”  Public health and safety could be endangered.  There is a real possibility that this could happen.

The only answer might be for Congress to reassert its legislative authority.  Agencies that now exercise independent powers delegated to them by Congress could be transformed.  Congress could convert them into legislative advisory bodies, carrying out the same expert activities as at present.   Congress would appoint the members.

The conclusions of independent agencies would not be decisions but rather recommendations to Congress.  Congress could establish balanced, bi-partisan committees, like today’s joint committee on taxation, to receive the expert bodies’ recommendations.  Congress could then vote on expert recommendations approved by the joint committee.

While this process would not eliminate partisanship, it would allow for expert opinion free from presidential politics and discharge the courts from determining what Congress meant in the original legislation.

In short, Congress would recover its right to legislate and resume its place alongside the other two branches.

  

Trump wants absolute power

An immigration case involving a single man reveals the heart of the issues raised by the Trump presidency.

Trump and his core team believe that he has virtually absolute and unchecked power.  His political revival is asserted as evidence that the American people want him to decisively change their government.

The case involves the removal from Maryland of Kilmar Armando Abrego Garcia, who claims refugee status and who remained in the U.S. as the result of a court order.  The Department of Justice says he was expelled because of an “administrative error.”

The government refuses to attempt to return him to the U.S., despite a unanimous Supreme Court order, backing a decision of a federal district court. The “administrative error” overlooked his right to due process, including a formal hearing.

DOJ officials argue that the courts cannot order the executive branch to “facilitate” his return.  They maintain that the Constitution gives the president complete and exclusive authority over foreign relations, making it impossible for the court to require him to take an action relating to the man, who is now in prison in El Salvador (the Savior).  

No basis exists for asserting that presidential authority over foreign affairs is complete and exclusive.  For example, the Constitution gives Congress authority in approving treaties, sanctioning enemies, declaring war and controlling immigration.  It may delegate functions to the president, but it retains ultimate control.

Most importantly, it has the power of the purse.  It may pass laws affecting the exercise of presidential powers by denying the use of federal funds for a specific purpose. 

The courts, too, have powers relating to the exercise of foreign relations. They are responsible for ensuring that all branches of government act within the requirements of the Constitution and laws, including due process. 

Despite DOJ claims, the Supreme Court has issued decisions, respected by the executive branch, related to government actions taken outside of American territory.  In the case of a person illegally sent by the executive branch to El Salvador, courts can issue orders to the president who sits in Washington.

The courts try to carefully consider their decisions and may issue temporary orders to halt executive branch action while they deliberate.  The executive may disagree, but it must comply, at least temporarily.

Judges disapprove of government action being taken despite such a restraining order, as the Trump administration has done in the case involving the hasty transfer of hundreds of Venezuelans to El Salvador without due process. 

In that case, the judge has found that the administration may be in contempt of court.  If he issues such a ruling, the DOJ would have to prosecute violators.  The judge warns that he could appoint outside lawyers, if the DOJ refuses to act.

When swift presidential action forces the court into making rapid rulings without full review, a district court judge, sitting alone, may be made to appear as a partisan adversary.  The president may claim to be tussling with an “unelected” opponent rather than disobeying a court.

The assertion of broad presidential foreign relations power is part of an attempt to exercise nearly total government power, pushing aside Congress and the courts.  The Republican Congress has voluntarily acquiesced, but the federal courts continue trying to ensure executive branch actions are legal.

Many federal court cases across the country involve complaints that many of Trump’s executive orders and DOGE agency-slashing moves violate the law.  By acting rapidly, the president has forced courts to act quickly either to suspend his actions or consider them after the fact.

In the federal government, each of the three branches can control, limit or delay action by each of the others.  Constitutional checks and balances are meant to ensure that nobody can exercise unilateral power, akin to authoritarian rule. 

No election, no matter how strong its political message, allows the winner to annul the constitutional system.  Elections and policies come and go, but the system must prevail.  If not, we can reach a point, as we have, when the president threatens to expel citizens he considers serious criminals.

That’s wrong for a citizen and is also wrong for a non-citizen, like Abrego Garcia.  Due process  does not apply only to a citizen; it applies to a “person” in the U.S., however they got here.

In an obviously staged event, the president of El Salvador met with President Trump at the White House.  He refused to return the man, saying he would not send a terrorist to the U.S.  There is no evidence that the man is a terrorist. 

But Trump did not correct him or say the U.S. would accept him in line with the Supreme Court order.  Instead, he smirked in approval.  Later, Trump’s press secretary defiantly asserted Abrego Garcia would never return to the U.S.

Is this where the Constitution stops?

 

The Trump Referendum

Gordon L. Weil

Voters unhappy with the performance of President Trump are looking for opportunities to express their discontent at the ballot box.  House elections to fill vacancies offer them little comfort thus far, because the seats have been solidly Republican.  The only cheer for them may be that the new members of Congress did not do as well as Trump did in last year’s election.

But major vote looms, and it is really all about Trump.  It’s when Canadians elect a new parliament. The vote takes place on April 28. That’s somewhat earlier than required by law, but political circumstances dictated the earlier date.

Prime Minister Justin Trudeau, the Liberal Party leader, had grown unpopular. Many Canadians believed that he had not produced an economy they could live with.  Facing the inevitability of a loss, he tried to sweeten the pot by ill-advised breaks for average people. But that would disrupt his budget commitments, and his finance minister, who would have kept them, quit.

His voting deal with other parties then collapsed, making early elections inevitable.  Trudeau resigned as head of his party, which would then select a new leader, who would become prime minister until the elections. It looked like the Conservatives, under Paul Poilievre, would sweep into power.

Poilievre, from the province of Alberta which is the rough equivalent of Texas, is a professional politician who had cast himself in the model of Trump.  Just as several European countries had voted themselves to the right, he hoped to do the same in Canada.  As in the U.S., many people seemed to want a change from Liberal policies that had not produced promised results.

Into this mix of events came Donald Trump.  He moved to raise tariffs in violation of the USMCA trade agreement that he had pushed in his first term.  The relief for tariffs that he clearly believed would cripple Canada was his plan to force the northern neighbor to give up its nationhood and become the 51^st American state.

His push for Canadian statehood had the same kind of effect there as Pearl Harbor had brought about in the U.S.  If there wasn’t instant unity, it came reasonably close.   Ideological sympathies and the export of its oil to the U.S. showed Alberta to be somewhat less enthusiastic about the response to the U.S. than the other nine provinces.

Poilievre was caught flat-footed.  His natural ally had become the great nemesis.  He saw his 25 percent lead melt to the point that he trailed the new Liberal prime minister.

The new Liberal leader was quite different from his predecessor, who had tried to placate Trump despite being called “Governor” Trudeau by his fellow government chief. The Liberals overwhelmingly selected Mark Carney, formerly governor of the Bank of Canada and the Bank of England plus having served as chair of the international Financial Stability Board.

In short, he knows his stuff and won’t agree with Trump’s version of the role of tariffs. He also comes to the job with excellent credentials and standing and, as a former hockey player, has made it clear he won’t deal with Trump unless he and Canada are treated with respect. 

Many Canadians seem inclined to support him, because he will defend the country against any Trump moves.  He recognizes the need for a long-term relationship with the U.S., but he says the old days are “over.”

There is a third party in Canadian politics, the New Democrats. They are similar to the Bernie Sanders wing of the Democratic Party.  It appears that they will lose strength, as Canadian voters want to make a clear choice between Carney and Poilievre.  The Quebec Party wins seats but cannot produce a government. That contest makes the election a clear referendum on Trump.

While Poilievre has been forced to open some distance from Trump, he remains the representative of a party that would move Canada in the same direction as the GOP.  Will voters conclude that he will be better able to work with his political soulmate than the technically competent Liberal leader?

Feeling runs high in Canada against the wild idea, presented as if it could happen, of their country as an American state.  Obviously, Carney is in a better position than the Conservative and looks stronger and more experienced that Trudeau (or, for that matter, Trump). 

If Carney wins at all and especially if he wins big, it will serve as a rebuke to Trump and his a la carte foreign and economic policy.  Not only will it say that Canada will not succumb to Trump, but that the Great White North will stand on its own as never before.  That could send the puck back to the Americans.

 

 

 

Don't count on the Supreme Court

 

Gordon L. Weil

President Trump seems to be amassing constitutional and legal violations. We await the inevitable action by the Supreme Court to exercise its checks-and-balances power to reverse his excesses.

His actions are likely to be found extra-legal even by a court stacked with conservative justices.  It’s possible that, while Thomas and Alito may not shed their partisan loyalty, the other more responsible justices will give the law dominance over power politics.

Don’t count on it.

Five members of the Court made up the majority in favor of the broadest legal statement of presidential power ever in U.S. history.  While they were joined by Justice Barrett last July, she went along with all their assertions.

That decision was penned by Chief Justice John Roberts.  His support for an almost unchecked president suggests that he will not now support a fresh look at limiting Trump’s powers.  He is a true conservative who may well agree with Trump’s policies.

Trump’s questionable moves take two forms.  First, he declines to follow the spending priorities that are the essence of congressional appropriations.  Congress may authorize or reject spending proposed by the president.  The president must spend just what Congress decides and refrain from spending without authorization.

Yet Trump has cut back on approved spending to the point of virtually eliminating government agencies.  He recognizes that Congress alone can formally terminate an agency, but he gets the job done by shutting it down.   In effect, he exercises a line-item veto, despite the Supreme Court having ruled that presidents don’t have that authority.

He also seeks to subvert the plain language of the Constitution, supported by the Court, the legislative record and historical practice.  He wants to deny citizenship to children of illegal immigrants born in the U.S., known as birthright citizenship.  Their citizenship is “black-letter law,” an unambiguous statement in the Constitution.

Trading on popular opposition to easy immigration, Trump appears to believes that the goal justifies a manufactured interpretation of the clear words of the Constitution.

Beyond these two gambits, he also applies existing laws, including one that formed part of President John Adams’ infamous Alien and Sedition Acts, in ways not contemplated by their drafters nor consistent with historical understandings in Congress and among the states.

The principal reason he can take actions straining the essence of the laws is the compliant Republican majority in the House and Senate.  The GOP members allow his moves either because they share his impatience with democratic processes or because they fear that crossing him may cost them their seats.  Their hold on power may be slim, but it works.

That leaves the federal courts and ultimately the Supreme Court.  They become part of the political system, searching for legal coat hooks onto which they can hang their pre-formed opinions. 

If it ventures too far into political questions, the Court runs the risk of one day facing political retaliation, quite possibly by the addition of new justices to counterbalance the conservative majority.  Roberts obviously worries about direct assaults on the federal courts.

So, the Chief Justice tries to keep the Court rulings as narrow and technical as possible. The Court can support the president simply based on the supposed procedural failings of his opponents and not on the merits of the central question itself.  Such decisions are made on the so-called “shadow docket” where they can be made quickly and without reasons.

A good example is the decision that Trump can transport Venezuelans to El Salvador.  By 5-4, the Court allowed his action based on the failure of the Venezuelans, while being in the expulsion process to bring their case to the correct district court.  The Court said they had due process rights, but let the administration get away with violating that requirement.

In avoiding the substance of issues, the Court can let Trump act freely, while insisting it has lost no power.  In Roberts’ view, the Court should not get involved in essentially political disputes, but should leave them to the president and Congress, the political institutions.  If they are aligned, as at they are now, their will must be deemed the will of the people.

That sends the ultimate recourse back to the ultimate sovereign – the people.  That could mean that the 2026 congressional elections are the next time a decision to approve or disapprove Trump’s authoritarian approach.  Trump has shown the broad implications of his approach and a decision on it should be the central point of the campaign.

Easy talk about defending democracy does not convey the necessary message about the potentially wide reach of Trump’s rule.  To paraphrase a famous statement, if people do not oppose the injustice of authoritarian rule when it affects others, nobody will oppose it when it affects them.

Trump Doctrine emerges: America First, block China

 

The Trump Doctrine now takes its place in American history.

Trump joins presidents who adopted broad world policies that became identified with them.  President James Monroe warned that Europe should stay out of the Americas, creating the Monroe Doctrine.  President Harry Truman pledged U.S. support to governments opposing authoritarians, creating the Truman Doctrine (though probably repealed by Trump).

Both Monroe and Truman based their doctrines on the growing American power.  The Trump Doctrine recognizes the limits of American power.  It has become known thanks to Defense Secretary Pete Hegseth, the accidental model of transparency even about the most sensitive government planning.

The Trump Doctrine has two priorities: defending the American “homeland” and preparing for a potentially military confrontation with China.  These are Trump’s basics drawn from Project 2025, a conservative manifesto that he had denied even knowing about.

“China is the Department’s sole pacing threat, and denial of a Chinese fait accompli seizure of Taiwan — while simultaneously defending the U.S. homeland is the Department’s sole pacing scenario,” is Hegseth’s description of the core of the doctrine.

This strategy explains policies that Trump has pursued from the outset of his presidency.  The U.S. prepares to meet a “threat” from China, but it acts now to fulfill a “scenario” of security.

First, defend the 50-state homeland by increasing the buffer around it.  Add Canada and Greenland to create a new, expanded homeland, allowing the U.S. to defend against attack from the north.  Owning territory provides greater security than a mere alliance like NATO.

The original America First movement in 1940-41 preached that the Atlantic and Pacific Oceans were satisfactory buffers, but the new America First supplements them with territory.  The aspirations and values of other nations must be overridden to put this plan in place.

Second, casting any doubt aside, the Trump Doctrine makes clear that the U.S. would use military force to protect Taiwan from a Chinese attempt to seize it.  It makes clear that the principal threat to American security comes from China.  While this may be accurate, all measures short of a military buildup seem to have been ruled out.

What about the rest of the world?  Europe, the Middle East and East Asia defenses would largely be left to regional powers.  The U.S, would help them against threats from Russia, Iran or North Korea, but only within the limits of its resources after dealing with its top two priorities.

Though American policy would call these regional powers “allies,” their dependence on the U.S. for weapons and intelligence would make them something more like the “satellites” that surrounded the Soviet Union and which Putin seeks to recreate. 

Trump’s attempt to take over key elements of Ukraine’s economy in return for past American help against the Russian invasion is a prime example of this approach.  Trump wields the power of tariffs, weapons supply, and intelligence capability to force compliance.  He even demands that foreign suppliers to the U.S. drop their DEI programs.

Because his demands affect the sovereign powers of other nations, his Doctrine could encounter strong resistance.  Sensing any willingness by them to make concessions, he increases his demands.  Leaders may try personal flattery, but can end up appeasing him to avoid retaliation.  History reveals that appeasement fails to yield satisfactory results.

Canada’s Prime Minister Mark Carney shows he understands that appeasement will not work.  Measures to cut tiny Fentanyl flows or a trickle of illegal immigration have only led to greater U.S. demands.  Carney is taking a tougher line with Trump and is trying to rally Canadians to a sense of unity that will preserve the nation.

Britain and France are willing to defend Ukraine, though some other Europeans remain addicted to taking a free ride whether provided by Europe or the U.S.  If those two countries plus Germany and Poland form a core response, they must make some voluntary sacrifices instead of those demanded by Trump.  Ukraine already is making sacrifices for its survival.

Instead of a free world dominated by the U.S., a series of interlocking accords are likely to gradually develop.  A variety of alliances focusing on military planning, arms production, trade and intelligence could grow, though the U.S. would remain a needed partner. 

Given the obvious flaws in American intelligence security, a new version of Five Eyes could include Canada, Britain, Australia, New Zealand plus Germany, which has sought to participate. A deeper trade relationship with Europe could bring Canada a form of associate status with the EU and participation in the Anglo-French military “coalition of the willing.” 

Moves toward greater self-reliance by otter countries could require costly adjustments, but so would the Trump Doctrine.

The U.S. might reverse its policy, but trust in it has been deeply damaged.  Its cast-off friends cannot take any more risks and must create their own future.

 

 

History shows DEI works; Eisenhower's Black soldiers

 

Gordon L. Weil

President Trump has set out to kill DEI – diversity, equity and inclusion.

His message is that the traditional system has been shunted aside by preferences given to members of groups that have suffered discrimination.  Groups helped by DEI include women, Blacks, American Indians, and Asians.  In his view, they have gained an advantage over white males.

The key element of his policy is the assumption that merit has been sacrificed to political correctness.  Competence is sacrificed.  He rejects the idea that DEI helps ensure that members of affected groups, though equally qualified, are not excluded because of their sex or race.

Trump wants to end DEI policies across American society, not only the federal government.  He can use the influence of federal spending to make that possible.  He also seeks to erase the history of discrimination, implying that leadership roles played by Blacks, women and others were due to their favored treatment, not their own merit.

Nowhere is his policy more apparent than in the Defense Department.  It may have been embodied in an excessively clever statement by a Pentagon information officer who issued a statement that DEI “Divides the force, Erodes unit cohesion and Interferes with the services’ core warfighting mission.” 

Carrying out Trump’s policy, the department went too far and erased recognition of Jackie Robinson’s service, the role of the Tuskegee airmen and a Black general who had won the Medal of Honor.  It was an attempt to whitewash history.  Strong opposition caused this erasure to be reversed, and the official was reassigned to less public duties.

He was wrong.  While you can change policy, you can’t change history.  A still almost unknown story reveals just how wrong he was.

Years ago, I wrote a book about building the Alcan highway in 1942.   It was a hastily constructed road to get troops and supplies to Alaska in the event of a Japanese attack.  In response to Pearl Harbor, President Franklin D. Roosevelt ordered the Doolittle raid on Tokyo and the Alcan.

It was built by seven Army Engineer regiments, four composed of white troops and three of Black troops.  The Army was not integrated below the regiment level.  The officers of the Black units, including my distant cousin, were white.  The road was quickly built.

Many of the Black soldiers were then assigned to Louisiana.  In the mess hall, they were given spoons but denied forks or knives.  They faced open racism.  As Black soldiers at many Army posts were similarly mistreated, they rebelled and were quickly shipped to Europe to drive supply trucks.

Following the successful but costly Battle of the Bulge in Belgium at the end of 1944, General Dwight Eisenhower, the supreme Allied commander, found the Army was short of front-line combat troops.  He wanted to add Blacks from engineer units, but was warned that he would have to ask permission from Washington.

Instead, Eisenhower called for Black troops, in excess of engineer needs, to volunteer for assignment to combat units.  Many volunteered and most were accepted into new platoons integrated into white companies and went into battle.  In theory, the separate Black platoons would not amount to integration.

But a platoon is a small unit, and they ended up fighting alongside white platoons.  Some Germans could recognize the presence of American forces by their Black troops. When the war ended in Europe so did the Black platoons.

Given the importance of wartime morale, the Army Department quietly conducted surveys of soldiers.  White soldiers who had fought together with the Blacks were asked for their reactions.   Only five percent said Blacks were not as good as whites, while 17 percent of officers and 9 percent of enlisted said they fought better.

Overwhelming majorities of officers and enlisted rated them favorably.  Ratings were highest in units that had faced the heaviest fighting.  Problems arose mainly when troops from outside units came in contact.  Survey respondents mostly favored the platoon approach, some saying that individual assignment could cause problems because of certain soldiers’ racism.

The results of those 1945 surveys would destroy the foundations of today’s attacks on DEI.  But Army bosses kept the surveys secret, presumably because the findings would make the case for integration.  Digging in the National Archives decades later, I found them.  My interviews with Black Alcan engineers confirmed the data.

These surveys are proof of the false basis for the Pentagon claim and for Trump’s opposition to DEI.

Trump removed the Black general chairing the Joint Chiefs of Staff, as well as Navy and Coast Guard chiefs, both women, without explanation.  Their appointments probably looked like DEI to him.

DEI should not place underqualified people in jobs.  Opposition to DEI should not be used to deny jobs to qualified people.  Trump’s claim of using merit alone obviously lacks merit.

 

 

 

 

 

U.S. becomes economic island; Trump's tax increase

 

Gordon L. Weil

In his avalanche of actions, President Trump has adopted an across-the-board tax increase. Like many of his other moves, he should have asked Congress to approve, but he chose to act on his own.

He is using powers meant for a true national emergency to radically increase tariffs as he launches his personal view of trade policy and seeks to use trade as a weapon against other countries, both friends and allies. 

Trump’s trade policy is aimed at making the U.S. economically self-sufficient.  The rest of the world sells more to the U.S. than America sells to them.  Trump charges they profit because they cheat.  In his view, the U.S. buys imports at rigged, low prices, rewarding countries that use their profits from enormous U.S. sales to subsidize their own economies.

He uses tariffs to force up the price of imports.  As import prices rise, higher cost American goods can compete.  In fact, U.S. producers may be able to raise their prices.  After claiming he would restore the economy and combat high prices, he has admitted that prices will rise because of his tariff policy and the country might face a recession. That’s hardly what he promised.

Higher prices are the taxes he imposes to finance his notion of the proper role of tariffs.  But the price is wrong. And Congress did not give the president emergency authority to use tariffs as he does and effectively raise taxes.

The U.S. is the world’s only economic superpower, for the time being at least, and Trump takes advantage of its strength to remedy what he sees as the victimization of the U.S. and to force other countries into line.  By his unchecked action, he raises prices. That has the exact same effect as if Congress had raised taxes to support a new policy.

Trump’s view fairly recognizes that traditional free trade does not always work.  Countries must have market economies where buying and selling are free for free trade to work.  But some countries that benefit from the low tariffs that are part of free markets have state-run economies that allow them to take unfair advantage of the system.

Take China, the worst offender.  Robert Lighthizer, Trump’s trade guru, correctly opposed China’s admission to the tariff-cutting World Trade Organization, because of its state-run system.  It became a WTO member by lying about its intentions.  Countries like China have made a mockery of free trade, but U.S. consumers lap up their lower cost goods.

Higher consumer costs are not the biggest problem.  Underlying Trump’s policy are several economic assumptions that have been disproven.

Much trade is based on economic efficiency, with countries specializing in production where they are strong. Trade naturally favors exchanges among countries selling what they are best at producing and buying from others whose goods are better or cheaper than their own.  That’s an efficient division of trade.

Trump complains that most other countries are using the system to take unfair advantage of the U.S.  That ignores the role of consumers in a market economy.  A nation’s import-export balance usually results more from what its domestic market wants than the trade treachery of others.

The U.S. depends on some countries for essential resources, like rare earths, uranium and even some types of oil.  A tough trade policy can get in the way of meeting essential needs.  As an alternative to easing trade policy, Trump pressures Ukraine to become a major low-cost supplier of rare minerals supposedly to repay American aid to its defense against the Russian invasion.

The Trump trade policy also ignores the reaction of other countries.  He assumes they will have to accept the loss of sales to American competitors.  He has argued they will pay more tariff revenues that will fatten the federal budget, though he increasingly recognizes that those revenues will ultimately come from American consumers when they pay higher prices.

He has little obvious concern whether, faced with American protectionism, foreign governments will reject his “beggar thy neighbor” policy.  But they retaliate, trying to reduce their U.S. imports and to punish the U.S. for its tariff increases.  The U.S. itself then retaliates. This spiral is the essence of a trade war.

Finding the U.S. an unreliable trading partner, other countries are likely to seek new trade relationships. The world economy can be reshaped if Trump persists.  For example, Canada could consider joining the EU customs union to replace its former free-trade relationship with the U.S.

As world commerce reconfigures, the U.S. dollar would lose influence as the most accepted reserve currency.  With that loss goes much of American economic power in the world.  

The political equivalent of protectionism is isolation and the loss of world power.  That could happen if Trump’s “America First” turns the country into an economic island.

Trump wrong about EU

Gordon L. Weil

President Donald Trump says the EU was “formed in order to screw the United States.”

This statement is both a gross misstatement and a demonstration of his ignorance of history.  It is either the result of intentionally distorting history or the sign of a seriously faulty memory. He insists on using his incorrect claim as the pretext for levying high tariffs on imports from Europe.

I am an eyewitness to the fact that Trump’s assertion is false.  I played a role in the relationship between the U.S. and the EU.

After World War II, leaders in the U.S., Britain, France and Germany agreed to seek ways to prevent yet another clash between Germany and France that could again lead to world war.  They were determined to find a formula that would make such a conflict impossible.

The solution was to intertwine the economies of Germany, France and other European countries so that they would be unable to develop an independent ability to build a war machine.  Even more important, the joint European undertaking would be based on democratic principles, with decisions being made in an organization that could, in many cases, overrule nationalistic action.

That formula worked.  Year by year, new forms of economic integration were adopted.  Eventually, a single market was created where goods and services and even workers could freely move.  As more nations joined, they established the world’s largest trading unit.   It operates along many of the same lines as the U.S. market.

American policy was consistently supportive of the Europeans’ efforts.  The emerging Europe would adopt the principles of democratic liberalism.  Not only could Europe refrain from conflict in which the U.S. would inevitably become entangled, but it could become a powerful ally in facing the aggressive policies of the Soviet Union.

Among Europe’s efforts to create unity was the establishment of a graduate school where the future leaders of the EU and its member countries could study, socialize and develop shared outlooks on common challenges.  As an American, I was selected to attend this school in the hope that I would represent American democratic values.

I would later become the sole American on the staff of the European Commission, the international body responsible for adopting continent-wide policies.  It was not difficult to explain to the American media the details of the new European decisions that were usually quite compatible with Washington’s policies.

The leadership of the State Department was favorable to the European effort and supportive in almost all cases.  I was able to serve as a non-diplomatic link between European and American leaders.

The high point came at a meeting between President Lyndon B. Johnson and Walter Hallstein, the president of the European Commission.  I was present with them in the White House Oval Office when they met to confirm their mutual interest in trans-Atlantic cooperation.  Clearly, Europe was not out to “screw” the U.S.

Of course, the U.S. and Europe would each promote their own economic interests, just as any country would.  Instead of going to war, they entered negotiations to find workable arrangements.  These talks took the form of the Kennedy Round of trade negotiations, named in honor of the late American president.

I became an American journalist, reporting to the Washington Post and other publications on the Kennedy Round and European unification. While the negotiations often focused on specific sectors, the goal was to find a balance of interests.  Each side should be able to end up with a deal that was beneficial to it.

The solution was to increase trans-Atlantic trade by lowering tariffs and non-tariff barriers.  In launching the negotiations, President Kennedy had recalled that “a rising tide lifts all boats.”  By lowering tariffs on both sides to increase trade, everybody could benefit.  The Kennedy Round succeeded.

This is the history that proves Trump wrong on both the facts and the policy.  The creation of the EU was not hostile to the U.S.  While the U.S. has a trade deficit today with the EU, the solution is more likely to be Kennedy’s “rising tide” than punching holes in the bottom of the boat. 

Democrats accept 'losers' label

 

Gordon L. Weil

Donald Trump likes to acclaim winners (often himself) and scorn losers.  If you are a “loser,” he holds you in contempt.

After last November’s elections, the Democrats were losers.  They saw control of the federal government go to President Trump, the Trump Republican Party in Congress and a Supreme Court majority openly sympathetic to him. 

Joe Biden led them to being losers.  The Democratic Party remained loyal to him and his policies when he should have stepped aside to allow the party to renew itself through primaries to choose younger leaders.   By clinging to the unrealistic belief that he was the only person who could defeat Trump, he was the Pied Piper who led the Democrats over the cliff.

Even worse, the Democrats see themselves as losers.  They haven’t recovered or developed a coherent response to Trump.  They cling to the hope of an eventual return to their policies as the American people come to see his flaws.  Perhaps, but meanwhile his “losers” label sticks.

They seem to accept it.  Their sign-waving in the face of a triumphant Trump at his speech to Congress was embarrassingly pathetic.   Their reaction to Trump’s extreme and ill-informed policies did not look like the response of a still powerful political party.  Opposition by Senate Democrats to the budget bill approving Trump’s actions was a more positive sign.

Possibly to avoid giving any potential presidential candidate an advantage, the party has not designated a spokesperson to take on Trump.  That has left the Democrats’ image in the hands of two leaders from Brooklyn, N.Y., Senate Minority Leader Chuck Schumer and House Minority Leader Hakeem Jeffries.

Neither of them has proved to be charismatic or capable of launching a sustained response to Trump.  Legislative leadership, more important inside the Washington Beltway than across the country, is not enough.  The Democrats should have a forceful, informed and younger person speak for them. 

Their voice need not be a member of Congress, but that person should be ready now.  Former Transportation Secretary Pete Buttigieg could fill the bill.

Clinton strategist and would-be Democratic wise man, James Carville, proposed that his party should “roll over and play dead.”  Do nothing and allow the Trump Republicans to self-destruct.  The Democrats could then pick up the pieces. That strategy says almost nothing about how they would reassemble those pieces.

The Democrats need a coherent and comprehensive answer to Trump. They should hold a mini-national convention to compensate for the lack of an open party process last year.  In reviving the party, the task of defining Democratic policies cannot be left to random pop-up leaders.

They risk being unable to agree.  They should recognize that a common goal – taming Trump – matters more than forcing their agendas into a hotly contested platform.  For their unifying message, they could adopt the motto, “the greatest good of the greatest number” and declare that equal respect for every person is an essential element of the greatest good. 

People should be treated as citizens of the country that is theirs and not as subjects of a presidential government that has taken control of the country.  The Democrats need to stress that the government serves the values, interests and needs of all people, not only those who voted for the latest presidential winner.

Their focus must be the congressional elections next year.  The president’s party usually loses seats at the midterm elections. That should cost the GOP control of the House.  But the Senate is a major challenge.  A majority is possible, but tough.  A veto-proof majority could only be obtained with some Republican senators. 

Getting GOP Senator Susan Collins to commit to independence from Trump should be the central element of next year’s campaign in Maine.  If she supports his excesses, her claim to being a moderate and not a Trumper could be exposed and make her vulnerable.

Trump threatens to unseat potential GOP dissenters, possibly exposing them to personal threats and attacks.  If public service means more than sitting in Congress, now is the time for the best leaders to take risks.  Otherwise, the political system may disappear beneath their feet, leaving little need for their public service.

The U.S. needs a functioning two-party system.  The parties have had sharply different views about good public policy, but have shared a commitment to the system.  The Republican Party is no longer the clear conservative voice; it is the Trump maga-phone.  The Democrats are drifting, leaderless and dispirited.

The Democrats should offer a political alternative to Trump that can win elections in a country that wants cooperation but cannot compromise.  They must lift the level of their politics above outbursts of frustration, bouts of depression, and disunity.  Otherwise, they will share responsibility with the GOP for the country’s decline.

 

 

American justice becoming pure politics

Gordon L. Weil

A group of state attorneys general, all Republicans, decide to go to federal court to block the actions of then President Biden.

A group of state attorneys general, all Democrats, decide to go to federal court to block the actions of President Trump.

They can go to a federal district court anywhere in the country and try to get the judge there to issue an injunction halting the president’s moves.  Better yet, they hope to convince a district judge, no matter how small or remote their jurisdiction, to make that injunction apply across the country. 

That’s often called a nationwide injunction.  Its prime characteristic is its effect on non-parties to the specific case that would be similarly affected by the president’s action.  These non-parties are usually the states that are still on the sidelines, which may be the president’s supporters.

In filing the case, the complaining states can select the district court where they will begin.  They look for a court where the likelihood of finding a judge favorable to them is the highest.  Judges may be selected at random for new cases, so the states look for the smallest pool with judges that share their politics or philosophy.

That’s called “judge shopping” or “forum shopping.”

For the Republicans, the desirable court may sit in Amarillo, Texas, or Fort Pierce, Florida. Each of those courtrooms has only one judge.  In Florida, it’s Aileen Cannon, who always does Trump’s bidding. 

For the Democrats, that may be the court, consisting of three judges, in Providence, Rhode Island.

Of course, the losing side will take an unfavorable district court decision to the Court of Appeals.  There, random selection of a panel of three judges does not assure approval of the district court ruling.  Still, the political orientation of a majority of the relevant appeals court judges may be similar to that of the district court judge.

Politics play a strong role in the nomination of judges. Of course, a president will seek to name judges who share their political views.  Presidents traditionally rely on the input or approval of a state’s U.S. senators in making nominations in their states.

Decisions by Courts of Appeal are likely to be appealed to the Supreme Court, when they involve states disputing presidential powers. Even there, the political orientation of the justices and of the presidents who nominated them may give that highest court a political hue.

It has become usual to see the justices referred to as conservatives or liberals.  They may claim that they merely follow the law, but the law itself must be interpreted, and individual judgments may reflect a justice’s political views.

The Supreme Court is increasingly facing cases involving presidential or executive branch powers.  The public’s need for prompt action and executive pressure has led the conservative-dominated Court to use procedural orders, the so-called “shadow docket,” to make more rapid decisions. 

That process can often allow for rulings with little or no explanation of the Court’s reasoning.  In this situation, it may be influenced by the previous course of the case as it came through the judicial process. Conservative district court decisions, even if they must be modified, percolate upwards.

The Supreme Court has come to make many fewer rulings each session. At the same time, it has given itself an essential role in sorting out questions about the president’s powers.

Will the Court act along partisan lines or try to keep to the law as it has previously been understood?  Trump and his backers count on its ultimate approval of their new views.  Justice Amy Coney Barrett, appointed by Trump, voted against his position in a recent procedural order.  She has been the target of bitter attacks by Trump backers.  They have also called for the impeachment of district court judges who oppose Trump positions.

More district court judges are needed, but new slots have been blocked by partisan warfare.  While the presidential campaign was under way, House Republicans refused to approve badly needed new slots.  After Trump won, they voted for enlargement.  President Biden then vetoed the bill, and no new judgeships were created. 

This was a rare case of the Democrats playing by GOP rules.  But the judicial system suffered because of such partisan tussles. 

The conservative Supreme Court was tilted to the Republicans by Senate GOP maneuvers.  Yet Biden and the Democrats refused to consider enlarging the Court, when they could. 

All the attempts to influence the course of the American political system through judge shopping and nomination games may now have their effect on whether any real limits are placed on Trump’s broad assertion of control.

The last word may belong to judicial partisans as the president pushes his powers and Congress collapses.

 

 

 

 

U.S. leadership of the West ending

Gordon L. Weil

The U.S. is like a nation at war.

The federal government is on the attack, deploying the power of the American economy and military to force other nations, states, the media and even citizens to follow the orders of President Trump and his agents.

This brutal campaign would reshape the economy and transform the world order.  It might also replace the American democratic republic with an authoritarian regime.

The end of economic, political and military systems on which many have relied results from the abuse of the awesome powers that Congress has given the president in the naive belief that custom would limit his exercise of them.

The Declaration of Independence states that it was issued out of a “decent respect for the opinions of mankind.”  The actions of the president in the few weeks since his inauguration has shown no such decent respect for the opinions of anybody who differs or objects. 

It would take only a few people to bring the government back under constitutional control.  If even a small number of Republicans in Congress joined with the Democrats, they could pass veto-proof laws to recover from the president the overly broad emergency powers he exercises.  If not, the GOP will share responsibility for Trump’s excesses.

The election certainly produced an administration determined to break with the traditions developed since World War II.  Trump always claimed that was his intent.  But his electoral majority did not give him a blank check to destroy America’s place as world leader or its system of balanced government.

He has routinely abused the congressional grant of emergency authority to take sweeping actions on tariffs and other matters that normally should be handled by Congress.  He has embarked on raising tariffs on imports from virtually the entire world based on a disastrously incorrect understanding of economics. 

He sees normal trade relations as warfare. If purchases from another country exceed sales from the U.S. to that country, for him the net exchange amounts to an intentional and hostile attack on the U.S.  He uses tariffs to raise import prices, and believes foreign suppliers will pay them.  Revenues from tariffs will increase.  Higher import prices will create competitive conditions for U.S. industry, which will prosper.

Other countries have not produced favorable trade balances intending them as hostile acts against the U.S.  Their advantages may come from paying labor too little or damaging the environment.  Higher American tariffs won’t fix either of them, and Trump doesn’t seem to care anyway.

The ultimate absurdity of Trump’s trade policy is slapping high tariffs on imports from Canada, a hostile act that will damage its economy.  Why?  Under a deal Trump made, most trade both ways is duty free. The American trade deficit in goods is more than offset by surpluses in trade in services and investment flows.

He charges without evidence that Canada allows floods of illegal immigrants and fentanyl into the U.S.  People on both sides of the border are bewildered about his real intentions.

He wants Canada as the 51^st state.  Canada, with an economy the equal of Russia’s and composed of 10 state-like provinces, has no interest in national suicide. If Canadians remain unwilling, he would coerce them by using American economic power.  Is that what an aging American president sees as his historic achievement?

He would treat Canada as a mere satellite, and just as he does Ukraine, a nation invaded by and at war with Vladimir Putin’s Russia.  Trump wants to be a peacemaker, with an eye on the Nobel Prize.  No matter that he would sacrifice Ukraine’s land and security for his dealmaking with Putin, whose favor he clearly seeks.

European countries, which share Ukraine’s worries about future Russian aggression, get in Trump’s way.  They embrace President Zelenskyy.  It may have pained Trump to see him received at King Charles’ private residence, just after Trump had received a royal invitation for a state visit.

When a group of European leaders met in London to plan their help for Ukraine, Canada’s prime minister, having turned away from the U.S., was among them.  For the sake of making a deal, Trump is losing American leadership of the West.

The Europeans cling to the belief they need American backing to defend Ukraine and to pursue a lasting peace and not merely a headline.  They must gear up, but meanwhile they could rapidly deploy major support.  Britain once faced Hitler alone, while the original America First movement kept the U.S. neutral.  Europe now needs its own version of Winston Churchill.

In this column, I try to make fair judgments, pro and con, about Trump and the Democrats.  I will continue to do so.  Now, it is necessary to speak out about Trump as he becomes increasingly dangerous, even to the freedom of the press. 

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?