Enabling The Autocrat

Last week it was reported that Brett Kavanaugh lobbied his fellow Supreme Court justices to actually avoid reaching any decision in the cases involving the House subpoenas of Trump’s tax records as well as the Louisiana abortion law. Kavanaugh actually argued that the validity of those subpoenas was a “political question” that was beyond the scope of the Court and better left to the legislative and executive branches to resolve. Kavanaugh’s approach, of course, would have essentially allowed the President to keep defying a valid congressional subpoena and to keep deploying the concept of absolute presidential immunity without giving that result the imprimatur of the Supreme Court.

In the end, the Court decided not to go along with Kavanaugh’s plan to abdicate its responsibilities. Instead, they managed to improve on it, reaching a decision that seemed to declare that the President is not above the law but also endowing the President with special rights that no other citizen enjoys, effectively rendering the House’s ability to obtain the tax documents an impossibility not only before the November election but also before the 116th Congress dissolves next January and the subpoenas disappear with it. In his dissent, Justice Thomas wouldn’t even go that far, declaring impeachment was the only option for Congress to get their hands on third party data related to the President and his businesses. The effect of the Court’s ruling was that the President could still defy a valid subpoena while the Court he was not above the law at the same time. As Will Stancil noted at the time, “We’ve established the important principle that the president isn’t above the law, but that doesn’t mean he’ll need to comply with the law”.

Kavanaugh’s theory that certain disputes between the legislative and executive branches are a “political question” beyond the responsibilities of the courts is not new. In fact, the DC Circuit used that very same argument in rejecting the House’s attempt to force Don McGahn to testify to the House Judiciary Committee as part of its impeachment investigation. As part of that decision, the court pointed out that that Congress had not yet exhausted its options for pressuring the executive branch to comply with the subpoena for McGahn. One of those options was to exercise the “power of the purse” by which the House could potentially withhold funding for certain parts of the government in order to “force” compliance with their subpoena. Of course, that would require such a bill not only getting passed by the Senate but also overriding the President’s sure veto. In other words, as far as the DC Court was concerned, Democrats would basically have to force a government shutdown in order get the administration to comply with a lawful subpoena. That would seem to be an extreme and highly disruptive path to force the executive branch to comply.

But last week the Supreme Court dealt a real body blow to Congress’ power of the purse. The case involved Trump’s diversion of congressionally appropriated funds for the military in order to build his border wall. The funds were originally intended for damage to military bases from hurricanes and other unforeseen natural disasters and, since the reasons for the border wall were illegal immigration and drug importation that had nothing to do with unforeseen natural disasters, the Ninth Circuit ruled that Trump’s diversion of funds was illegal. Last summer, the administration asked the Supreme Court to stay the lower court’s decision in part because it claimed it would suffer irreparable harm if it could not finalize contracts for building the wall by the September 30 end of fiscal year when the appropriation would expire. The Court granted that stay, with Justice Breyer joining the conservatives in part because of irreparable harm the government was claiming.

Now, a year later and with the government having secured the necessary contracts, the plaintiffs asked the Court to lift the stay and prevent the actual construction of the wall with funds that a lower court has currently deemed are being used illegally. The Court, with its five conservatives providing all the votes, refused to lift the stay. As Justice Breyer pointed out in his cutting dissent, “Now, the Government has apparently finalized its contracts, avoiding the irreparable harm it claimed in first seeking a stay. The Court’s decision to let construction continue nevertheless, I fear, may ‘operat[e], in effect, as a final judgment'”. The net result is that the administration can begin to build the border wall even as a lower court has ruled what it is doing illegal, making the entire case effectively moot. And it was yet another example of what Justice Sotomayor described as the Court “putting its thumb on the scale in favor of Trump” when it comes to issuing stay orders, a process Steve Vladeck has described as the “shadow docket”.

This ruling effectively neuters Congress’ power of the purse. As Stephen Wolf notes, “What check does Congress have on the president by withholding funding if he can simply raid other appropriations to find the money for whatever he wants?”.  So this is where we are. The DC Circuit refuses to intervene to enforce a valid congressional subpoena as part of an impeachment inquiry, but suggests Congress use its own powers, such as the power of the purse, to force compliance. On the other hand, a Supreme Court does allow the congressional subpoena of third party documents related to the President even though it is not part of an impeachment inquiry, with one Justice suggesting that such documents should require the use of the ultimate power of impeachment. Finally, the Supreme Court effectively guts Congress’ power of the purse, allowing the President to raid other appropriations to satisfy his own personal whim, and nullifying one of the powers that the DC court recommended Congress to use to force compliance with a subpoena that was part of an impeachment inquiry. The circular logic of all these rulings are hard to make sense of until you realized that virtually every one of these decisions increases the power of the Presidency and neuters the legislative branch.

Of course, the legislative branch, particularly the US Senate, is already doing a pretty good job of neutering itself. As of February of this year, the 22 cabinet positions had been filled by acting officials for over seven years of combined time. That number does not include sub-cabinet positions that also require Senate confirmation or any changes since February. In March, a federal judge ruled that Trump’s appointment of Ken Cuccinelli to be acting head of the US Citizenship and Immigration Services was an illegal violation of the Federal Vacancies Reform Act (FVRA). Trump then wanted to appoint Cuccinelli as Deputy Secretary of DHS, but that too was illegal because Cuccinelli had not been previously confirmed by the Senate for any other position. Instead, Cuccinelli became the Senior Official Performing the Duties of Acting Deputy Secretary, an entirely fictional position, while passing himself off officially as the Acting Deputy Secretary. Cuccinelli’s boss, Chad Wolf, has been illegally serving as Acting Secretary of the DHS for almost the last two months, having exceeded the maximum term for an acting secretary under the FVRA for 53 days and counting. The GOP-controlled Senate, however, seems unperturbed by not only the erosion of their institutional power and responsibilities but also by Trump’s open violation of the advise and consent requirement in the Constitution.

Now the President is using the same trick with Anthony Tata, trying to install the general as the Deputy Under Secretary of Defense for Policy. This time, Trump at least first tried to get Tata confirmed for the position by the Senate but it soon became clear that even Senate Republicans could not stomach the former Fox News commentator and Trump sycophant. Instead, like Cuccinelli, he was given the honorific of “Performing the Duties of Deputy Undersecretary of Defense for Policy”. The fact that Trump would still make this appointment in the wake of Tata’s clear rejection of the Senate is another clear challenge to the Senate’s power. Of course, the fact that the GOP Senate doesn’t even object shows they just don’t care.

The fear about Tata is that Trump wants him to eventually replace Esper as Secretary of Defense. And, in fact, the FVRA would allow Tata to be appointed as the Acting Deputy Secretary after waiting 90 days since his withdrawal from Senate consideration. As Fred Kaplan writes, “Some fear that Trump is planning to fire Esper and replace him with Tata as acting defense secretary. If Tata had been formally nominated and confirmed as undersecretary, this could have happened; it may even have been Trump’s plot…So maybe Trump thinks he can get away with moving Tata up the ranks, even to become acting secretary of defense. The Republican-controlled Senate would have to take active steps to block Trump’s desires. That would be a first”. That 90 day window that prevents Tata’s taking on the role of Acting Deputy Secretary expires just before the November election. Dan McFadden worries that Tata may not have the same reservations that Esper has shown when it comes to using the military for domestic law enforcement.

While neutering their own institutional power, congressional Republicans are instead busying themselves by becoming conduits for foreign disinformation campaigns designed to re-elect Trump. Both Senator Johnson and Representative Nunes have apparently received packets of disinformation concerning Biden and Burisma, including tape recordings being peddled by a KGB-trained, pro-Russian Ukrainian. Nunes, you may remember, recycled disinformation provided by the White House that Obama had “spied” on the Trump campaign as well as interfered with the House Intelligence Committee’s investigation of Trump-Russia collusion after he had been forced to officially recuse himself from the investigation. Johnson has repeatedly threatened to issue subpoenas for documents related Biden and Ukraine, an action that could create some thorny legal issues. As part of its restrictions on House subpoenas related to the President in the tax document case, the Court demanded that Congress show a concrete legislative purpose for receiving the documents. It seems that Johnson’s efforts to embarrass Biden in the run-up to November’s election has no real legislative purpose at all, despite his efforts to describe it as an investigation focused on the “corruption of the transition process”. If those subpoenas are allowed to stand, we would basically be in the situation where Republicans could investigate Biden and Democrats could not investigate the President.

Fortunately for Johnson, he has been able to receive reams of Ukrainian related documents from the State Department without having to subpoena them. Secretary of State Mike Pompeo is, at the same time, refusing to provide those very same documents to the House Foreign Affairs Committee, forcing the Democrats to now subpoena them. Other requests for documents from the House committee regarding Trump’s communications with Putin, Jared Kushner’s “diplomatic” efforts, and the politicization and distortion of intelligence have languished at the State Department unanswered for over a year. This follows a pattern from the Trump administration which actually created a legal policy to refuse oversight requests from House Democrats when the party was in the minority. The policy has continued even after Democrats gained control of the House in 2018, with senior administration officials only agreeing to testify to the Senate and not the House.

As Ryan Goodman notes, “While the president and the White House have flouted congressional oversight with impunity, any State Department employees involved in executing this strategy [of refusing to comply with House oversight requests] could face legal jeopardy under several statutes. For example, a rider in federal appropriations law provides a ‘governmentwide prohibition on the use of appropriated funds to pay the salary of an officer or employee who prohibits or prevents, or attempts or threatens to prohibit or prevent, another federal officer or employee from communicating with Congress'”. In addition, when related to the investigation into the Bidens, these officials risk violating the rarely-enforced Hatch Act. Goodman’s larger point is “The Trump administration has bent or broken all legal standards and norms related to congressional oversight. The president’s directive that his administration respond only to requests from Republicans is among the clearest evidence of this abuse of power…These tactics undermine our system of checks and balances.”

All of these decisions and actions will have consequences for the future. The court’s decisions have created precedent that expand executive power. The decision by congressional Republicans to go along with Trump’s clear abuse of power will significantly weaken Congress’ overall constitutional role of executive oversight and further strengthen the power of the Presidency, whether that office is held by a Republican or Democrat. Restoring that balance of powers will be far more difficult than most imagine. Certainly, expecting Democrats to agree to restore these checks and balances if Biden wins seems like a tall order, essentially asking them to willingly give up the extraordinary power that Republicans let Trump wield. Some may argue that Trump is an ineffective autocrat, but the reality is that he has managed to expand executive power probably more than any other president since FDR. That has been accomplished largely through Congress and the courts willingly ceding their own constitutional powers to him. And that situation will leave our democracy in serious danger for the foreseeable future.