One-Man Rule

What happens when a President doesn't care whether his actions comply with the law? We are about to find out.

So President Trump has fired a whole host of federal agency Inspectors General without providing either the 30-day notification to Congress or the "substantive rationale, including detailed and case-specific reasons" why an Inspector General was removed, both of which are, unambiguously, required by law. Josh Blackman asks:

"What is Trump's justification for not providing the notification? Maybe the restriction can't be applied to a new President who has just come into office? Does Trump think that the thirty-day clock infringe on his Article II removal power? Is he daring one of the IGs to sue him, to set up a Supreme Court test case?"

Let me respectfully suggest that Josh has overlooked the most obvious answer to the question, which is:  He [Trump] couldn't care less.  He has figured it out: He can do whatever he wants, and nobody can stop him. Unilaterally impose 25% tariffs on Colombian imports? Do it.  Withhold federal disaster relief to cities that don't assist ICE agents carrying out their raids? Absolutely. Halt all payments due for dispersal under NIH research grants until grantees dismantle their DEI programs? Sure.

Does anyone actually believe that, during the discussion in the Oval Office concerning those moves, Trump asked: "Are we sure we have statutory and constitutional authority to do this?"?

He knows, and we know, exactly how this plays out.

1. There's a fair bit of outrage, from reasonable people, about the illegality of the action.

2. Some of the fired IGs sue in federal court to void their dismissals on the ground that they were unlawful.

3. Considerable tangential discussion about "standing" and "mootness" ensues, but in the end - we're talking maybe May or June at the earliest - they win!

4. Judgment is stayed while Trump appeals.

5. The appeals court takes a look at all the complicated removal clause/Article II arguments and issues its judgment . . . .

Meanwhile.  By this time, of course, pretty much everyone has forgotten what the case was about.

But much more importantly: when Trump finally loses the case and the court issues its order - "Your actions were unlawful. You must reinstate the IGs effective immediately" -- what happens then?

6. We all know what happens then. What happens then is that he says "Go f*** yourself."

The End.

I guess there are just a lot of people who think one-man rule is just what we need at the moment. I hope they're right, because it is what we've got.

Comments

[Katall]

The only remedy is impeachment. I am not saying he should be impeached and I am relatively sure that Congress will not impeach him, let alone convict. I am just saying that, unless Congress asserts its authority, it, effectively, has none.

And, for those who thought that Biden was an "imperial president", perhaps you should rethink, as what we have now is a true imperial presidency. As David so rightly notes, this is what the majority of Americans voted for, and (a plurality, perhaps) wants.

[David Post]

Katall: The only remedy is impeachment.
I agree. There may be some line which, if/when he crosses it, will cause 17 Republican Senators to say: Uh-uh. You've overstepped the mark. It's hard to know what that might be.
And now that Trump has seen how easy it is to tell the courts to go fuck themselves, what's to stop him from saying that to the Senate as well?

[Josh R]

Has Trump told the courts to fuck off yet?

[David Nieporent]

I agree. There may be some line which, if/when he crosses it, will cause 17 Republican Senators to say: Uh-uh. You've overstepped the mark. It's hard to know what that might be.

There is no such line. We know that. He could dismember a child on national TV while tweeting out the nuclear launch codes and saying, "These are for you, Vlad; go wild," and after getting past the "I didn't see the tweet, so I can't comment on it" and "Why can't you take a joke?" they'd find some reason why DEI forced him to do it.

[Brett Bellmore]

Yeah, go ahead and fantasize that's true, you might as well, since you'll never have to worry about him doing it, and you being proven wrong.

[David Nieporent]

He attempted to overthrow the government, and the condemnations lasted several hours before the excusemaking began.

[Rossami]

That's one interpretation. The other interpretation is that he didn't in fact attempt to overthrow the government and that the outrage was wildly disproportionate to what actually did happen.

[Josh R]

He tried to steal the election. Those who think otherwise are delusional.

[damikesc]

He did not try to steal an election. Those who think he did are idiotic AND delusional.

[David Nieporent]

He lost, bigly. He had people forge votes, tried to threaten state officials into changing votes, tried to intimidate Mike Pence into throwing out votes, and then tried to use a mob to effectuate those when the first part of the plot failed. It's hard to see how that's not trying to steal an election.

[damikesc]

Again, if you're incapable of making honest comments, what is your point?

[bernard11]

damiksec looks like the one incapable of making honest comments.

At this point it's clear that Trump cultists only care about supporting Trump. Facts, laws, etc. just don't matter. They are entranced by this felonious all-round scumbag.

[Riva]

It's pointless to argue with someone in the throes of TDS. And I encourage the insane left to persist in their derangement. The more they waste time and effort in this anti-Trump insanity, the more the adults in the adminstration can accomplish. And the less elections Democrats will win.

[shawn_dude]

What level of outrage is disproportionate to 5 dead police officers and a pardon for the people who beat them with fire extinguishers and clubs?

[Michael W. Towns]

No police officers died on Jan 6. That's always been Democrat Party propaganda.

[RedheadedPharoh]

Weird how the Government Censorship Complex never put a kibosh on those lies.

[VinniUSMC]

What level of outrage is disproportionate to 5 dead police officers and a pardon for the people who beat them with fire extinguishers and clubs?

The same level of outrage that is proportionate to shawn_dude lying like jeffy. More like condescension than outrage, but either way, you're still a lying turd.

[Michael Ejercito]

They were not murdered.

[Bruce Hayden]

But they did kill two women civilians. The death of the first, Ashli Babbitt, could be considered 2nd Degree murder. Which is why the perp, Capital Police Lt Byrd, was given immunity by Biden his last week in office. He shot and killed an unarmed woman half his size, without trying any of the available non lethal means available to him and the other officers surrounding him, including just arresting her. As the ranking officer on the scene, he could have easily just ordered one or two of the officers surrounding him to subdue her physically. Further investigation may have gotten it to 1st Degree Murder. The death of the 2nd woman killed by the police probably didn’t rise above criminally negligent homicide, since the death appears to have resulted from having been beaten down, by several officers, ignored, and anyone attempting to get to her to provide medical help kept away. Maybe 2nd Degree murder though if it could be shown that she had been noticed lying on the ground and had been intentionally ignored.

Keep in mind that the police actions that caused the deaths of those two were far more egregious than what caused race riots and murder trials for the officers involved in the deaths of Big Mike Brown and George Floyd. But Lt Byrd was black, and Babbitt was white… Even without the racial angle, police are routinely prosecuted for less egregious deaths across the country.

[Estragon]

“unarmed woman”

This is a lie

[David Nieporent]

"murder trials for the officers involved in the deaths of Big Mike Brown"

So is this.

[TwelveInchPianist]

The only lie is DN truncating one of the comments to make it appear incorrect.

[Estragon]

When did the murder trial for Darren Wilson take place? I must have missed it

[David Nieporent]

The only lie is DN truncating one of the comments to make it appear incorrect.

How does the word "and" work?

[TwelveInchPianist]

There were, in fact, race riots and murder trials.

[Estragon]

So… I didn’t miss with Darren Wilson trial?

[David Nieporent]

There were, in fact, race riots and murder trials.

I'll let pass whether the demonstrations in Ferguson were "race riots" (rather than, say, demonstrations or police riots). Where was the "murder trial[] for the officers involved in the death[] of Big Mike Brown"?

[Careless]

david... You actually seem to be the one to need to review how the word "and" works

[Brett Bellmore]

"“unarmed woman”

This is a lie"

Back you your, "She had a pocket knife, that she never took out of her pocket! That makes her armed, and thus OK to gun down!" nonsense.

[Estragon]

“thus OK to gun down”

For like the seventh time… I have not once said this. It is still a lie to claim she was unarmed, no matter how often you try to hand wave that away

[Brett Bellmore]

What other motive do you have for lying about her being armed?

She had a pocket knife, a perfectly ordinary one, that she didn't even take out of her pocket. That's not 'armed' by any sane standard.

[Lee Moore]

There is also the question of how the pocket knife got into her pocket.

[Estragon]

“Motive”

I have some guesses, which I have repeatedly alluded to in our now several exchanges on this subject. I can only repeat myself so many times. If this is so insignificant, why does it get repeated over and over?

You are also repeating yourself. She was carrying a knife but unarmed, you say, over and over, as if you want to talk about whether this shooting was justified. It’s telling, in a way, that this is where you always go back to— suggesting that I “feel better”about this poor woman killed by Trump’s lies because of the knife— perhaps because you can imagine yourself making such an argument in a different context.

She was carrying a knife, therefore she was not, as the OP claimed, an unarmed innocent woman. Why is it so important to the myth making to repeat this over and over? What other stories are we going to be asked to accept as gospel about that day?

[Estragon]

You know who else wasn’t completely innocent and pure— callously murdered by perfidious enemies within? Horst Wessel. They even wrote a song about him!

[Estragon]

“There is also the question of how the pocket knife got into her pocket”

St. Ashlii of Columbia— innocent and pure! Evidence planted! LOL!

[Brett Bellmore]

I've said this repeatedly: If I were doing what she did, in her place, I'd have expected to be shot. I don't think there's any question that she knew she was behaving illegally.

When has nothing to do with the lie about her being armed. At best she was an idiot, but she wasn't an armed idiot.

[Estragon]

And round and round we go. She was carrying a three inch blade in her pocket. Why can’t you just say “apparently unarmed”? Because of the myth making.

Now we have Lee Moore chiming in from tinfoil country, revising the sad tale of our Martyr of the District, St. Ashlii of Columbia, innocent, pure, FRAMED! It’s happening right before your eyes Brett!

[jimc5499]

What dead police officers? Back that statement up. Wait. You can't. Stop spouting Democrat talking points.

[damikesc]

Zero died. So, since you are incapable of factually making an argument, we should take said argument seriously...why?

[VinniUSMC]

Poor, brainwashed Dave. I feel sorry for anyone who has the misfortune of hiring you. Do they have to pay extra for the anti-Trump tirades you undoubtedly foist upon them?

[Kazinski]

Ok, you have finally convinced me.

When I see how thoroughly he has broken you, and so many others, on his wheel of mean tweets, and I clearly see the horror of the imaginary dismemberment of an imaginary child I weep.

[Commenter_XY]

You only need a majority of the House to impeach, Professor Post.

That doesn't depend on 17 Republican Senators.

[wnoise]

As we have seen, an impeachment without a conviction is useless.

But it's a reasonable use of metonymy to use "impeachment" to mean "successful impeachment", i.e. with a conviction in the senate.

[Commenter_XY]

Hey, never saw metonymy before...Learned a new word today. Thx for that (seriously).

metonymy /mə-tŏn′ə-mē/
noun
A figure of speech in which one word or phrase is substituted for another with which it is closely associated, as in the use of Washington for the United States government or of the sword for military power.

[Noscitur a sociis]

I think it’s pretty obvious in context that they’re using the common colloquial shorthand to mean “impeached and removed from office”. Especially since history shows that impeachment alone doesn’t seem to be much of a deterrent for Trump.

[Commenter_XY]

I think it is pretty obvious that Professor Post wrote:

Katall: The only remedy is impeachment.
I agree. There may be some line which, if/when he crosses it, will cause 17 Republican Senators to say: Uh-uh. You've overstepped the mark. It's hard to know what that might be.

As a factual matter, one only needs a majority of the House to impeach. Perhaps he worded this poorly.

[shawn_dude]

Pedantry makes a poor argument.

[Lee Moore]

This is a legal blog

[myself]

Populated by people who are under no obligation to waste time by deliberately misreading things.

[damikesc]

"I think it’s pretty obvious in context that they’re using the common colloquial shorthand to mean “impeached and removed from office”. Especially since history shows that impeachment alone doesn’t seem to be much of a deterrent for Trump."

If they did not try to impeach him for going against the "foreign policy apparatus" and request a foreign leader investigate crimes that the next President and family undeniably committed...it might mean more.

Do not blame Trump for Democrats making impeachment meaningless.

[Michael Ejercito]

Very great point!

[David Nieporent]

If they did not try to impeach him for going against the "foreign policy apparatus" and request a foreign leader investigate crimes that the next President and family undeniably committed...it might mean more.

They did not in fact try to impeach him for going against the "foreign policy apparatus" and request a foreign leader investigate crimes that the next President and family undeniably committed. They in fact actually impeached him for trying to extort a foreign country (by withholding military aid that he had no lawful authority to withhold) to announce an utterly meritless investigation of his anticipated election opponent.

[I Callahan]

Nope. That most certainly didn't happen.

You know, if you liberals are ever going to come out of the wilderness that you've banned yourselves to (solely due to what amounts to mass mental illness, I might add), the FIRST thing you have to do is at least tell the truth once in a while.

That's a BARE minimum.

[David Post]

Commenter_XY:You only need a majority of the House to impeach, Professor Post. That doesn't depend on 17 Republican Senators.
Yes, I do indeed know that. As others noted, I was using the term "impeach" to mean "impeach and convict." I think that's what Katall meant in his/her comment to which I was replying. Admittedly (slightly) imprecise, but I think the meaning was clear to most/all readers.

[Darth Buckeye]

This all depends on what Trump does assuming the highest court to rule on the dismissals finds them to be unlawful. When does presidential defiance constitute a "high crime or misdemeanor?"
Other presidential actions have been unlawful that did not rise to the level of impeachable offenses. Obama and DACA. Biden and student loan forgiveness.

[jimc5499]

But it's different!! It's Trump!!!
He could have easily written this article anytime in the last four years, but he didn't. It would have been more accurate then or have we forgotten things like COVID vaccine mandates, lack of enforcement of immigration laws and student loan forgiveness.
Reason is showing it's true colors. Blue.

[Randal]

Or, you might be an retarded. David's hypo ended with Trump ignoring SCOTUS. Not something Biden or Obama ever did.

[David Nieporent]

And since I can anticipate: no, Biden did not do that w/ student loans. Biden said, "Pursuant to Section 43hqj(2), I am forgiving these loans." (The statutory cite is made up, because, well, it's easier.) SCOTUS said, "No, Section 43hqj(2) doesn't give you authority to do that." Then Biden said, "Okay, well, then, pursuant to Section 43hqp7(b), I am forgiving student loans."

One may not like that — I thought the whole notion of forgiving loans was terrible policy, so obviously I didn't like it — but it does not constitute ignoring the Supreme Court.

[I Callahan]

Not something Trump ever did either, but that's not stopping you from imagining it's going to happen.

[Kyle T]

I haven't been reading these blogs long enough to know:
- Did you call for the impeachment of Obama for any of the 9+ times he lost at SCOTUS for violating the Constitution?
- Did you call for the impeachment of Biden (Obama) when he continued to defy SCOTUS in his attempts to illegally forgive student loans?

This could be a challenge to the potential Constitutional overreach of Congress violating the premise that Presidential Appointees serve at the pleasure of the President.

[I Callahan]

Nope. The professor was eerily silent on those issues. Because yes, even intelligent law professors can suffer from TDS.

[M L]

"dismember a child"

Dismembering babies is a Democrat thing. More than 63 million since 1973.

[Randal]

Oh, you might not understand what a baby is M L. Too numb so dumb.

[I Callahan]

No, he knows much better than you do.

[JasonT20]

I agree. There may be some line which, if/when he crosses it, will cause 17 Republican Senators to say: Uh-uh.

You're going off of the numbers of the previous Congress. It will take 20 Republican Senators to convict and remove Trump now. (Assuming all 47 in the Democratic caucus vote to convict.)

[David Nieporent]

As David so rightly notes, this is what the majority of Americans voted for,

A majority of Americans voted for someone other than Trump.

[Lee Moore]

True, but a majority of those Americans who voted, voted for either Trump or his acknowledged supporter RFK Jnr, so “this is what a majority voted for” is a reasonable take.

[FivebySixThree]

A majority voted against his opponent and that is what mattered in the end.

[I Callahan]

Get out of your echo chamber. It's one thing to lie to the other commenters, it's another to lie to yourself.

[Please, Daivd, Seek Help]

To be clear, it's not a majority of Americans that voted for Trump. A majority of Americans don't vote for any winning candidate. It's also not a majority of eligible voters that voted for Trump. It's not even a majority of voters that voted for Trump. It is a plurality of voters.

My beef here isn't with Trump, Trump won in 2016 and Trump won in 2024 and we all agree to abide by the system that translates votes to outcomes and he won under that system, and more importantly in 2024 because of the popular vote win, it's reasonable to stipulate that even someone who wants direct democracy would have him win. Someone has to be president, and he won according to the rules of the game, so it's him, just as Biden won in 2020, for instance.

My point is that every President -- both in my lifetime (Reagan, Bush, Clinton, Bush, Obama, Trump, Biden) and further back than that -- engages in this shell game where they take their legitimate electoral college win and project it to be a much broader mandate and a much bigger imprimatur of legitimacy than it actually has. It's really really difficult to go from who wins to what people actually want.

[Josh R]

we all agree to abide by the system that translates votes to outcomes

Trump doesn't.

every President -- both in my lifetime (Reagan, Bush, Clinton, Bush, Obama, Trump, Biden) and further back than that -- engages in this shell game where they take their legitimate electoral college win and project it to be a much broader mandate

I agree, but that's not relevant to David's point. All those other presidents carefully pushed the envelope on his ability to unilaterally dictate policy. Trump doesn't give a fuck.

[Bruce Hayden]

We shall see how it comes out in court. Biden was routinely slapped down by the courts in his various attempts to forgive student debt, and at least once by the Supreme Court for the prosecution of Trump, and a second time, by a trial court, at the suggestion of a Supreme Court Justice in the usual majority.

[damikesc]

Biden then proceeded to repeatedly ignore SCOTUS.

[Sarcastr0]

*Ignore* them?

What are you thinking about here?

[damikesc]

The repeated attempts to forgive student debt.
The attempted eviction moratorium.

Can you do any research?

[Randal]

I don't see any way of reading the eviction moratorium as a defiance of SCOTUS.

The student debt forgiveness, I see why you might think that, but you are wrong. If he were defying SCOTUS, he would be just done it anyway. Instead, he started all over again from scratch with a different justification. The reason that matters, in practice, is that it was never successful. If the attempt fails, it's hard to say that SCOTUS was in fact defied.

[damikesc]

SCOTUS said In June 2021 it was ready to declare it unconstitutional, but given that it was set to expire (in July, with the solicitor promising no further extensions), they were not going to take the case.

Kavanaugh was quite clear on that and it was the ONLY reason it was not shut down a month early (the 4 conservative justices were on board to end it). There is no question it would have gone down in SCOTUS.

He did it again anyway. He admitted he did it because "by the time it gets litigated, it will probably give some additional time while we're getting that $45 billion out to people who are, in fact, behind in the rent and don't have the money."

He KNEW it was illegal. He KNEW SCOTUS would strike it down.

He did it anyway.

[Randal]

That sounds like Kavanaugh's problem, not Biden's.

[Lee Moore]

That sounds like Kavanaugh's problem, not Biden's.

You fucked up, you trusted us !

Kavanaugh as Flounder - I like it.

[myself]

Then why didn't Harris declare that Trump lost the election as Trump directed his VP to do?

The Trump is President according to the rules of the system, but that also means he's bound by those same rules. Winning the election didn't give him mandate to be a dictator.

[I Callahan]

Good thing he's not being a dictator now, nor ever will be. You're working off a caricature, and one that is so utterly ridiculous that anyone who reads these threads MUST conclude that the legal profession is run by lunatics.

[Bubba Jones]

And does the court actually order reinstatement of the IG?

Or do they order that he comply with the notification requirements?

Or do they rule that the notification requirements have no enforcement mechanism, since he doesn't actually need congressional approval to fire the IG?

And when the Senate confirms the replacement IGs, does that moot the case?

[Longtobefree]

Or do they rule the law an unconstitutional infringement on the executive branch, violating the separation of powers?

[David Nieporent]

Even if one takes a maximalist view of executive power such that Trump doesn't need to give 30 days notice before firing them, under what stretch of the imagination could "separation of powers" support him ignoring the requirement that he must notify Congress of the reasons for firing them?

[Brett Bellmore]

I'd say that if he's constitutionally entitled to fire them, he doesn't actually have to provide any reason more detailed than "I wanted to fire them.".

[David Nieporent]

Assuming for the sake of argument that he has unlimited constitutional discretion to fire them, "because I wanted to" may be legally sufficient. But he did not in fact transmit any such notice to Congress giving that explanation.

[Bruce Hayden]

Yet - we aren’t yet a week in, and he could just transmit a justification to Congress, and probably moot the cases.

But you really didn’t address whether the justification to Congress was Constitutional, under Separation of Powers, in the first place.

[David Nieporent]

But you really didn’t address whether the justification to Congress was Constitutional, under Separation of Powers, in the first place.

Uh, I'm the one who asked that question: "under what stretch of the imagination could "separation of powers" support him ignoring the requirement that he must notify Congress of the reasons for firing them?"

What's the argument that Congress can't write laws that obligate a president to take certain actions?

[I Callahan]

What's the argument that Congress can't write laws that obligate a president to take certain actions?

It depends on the action. Firing EXECUTIVE branch workers? No. That's the argument. It'll take a constitutional amendment to change that.

[David Post]

Bruce H:Yet - we aren’t yet a week in, and he could just transmit a justification to Congress, and probably moot the cases.
And what, pray tell, would that "justification" actually say? "I want to put my own guys in there" - which is the only "justification" I've heard yet from the White House, doesn't cut it.

[Noscitur a sociis]

Why not? (I mean, it’s a little stupid since some of them are his own guys.) He surely didn’t bed more of a reason to replace, say, Lloyd Austin or Antony Blinken, did he?

[Lee Moore]

His own guys frequently disappoint him. That he may have appointed some of them does not mean that he still approves of their performance.

I'm pretty confident that he is dissatisfied with the performance of Kavanaugn and Barrett, but because of hs deep respect for the Constitution, he has not made - and I predict will not make - any attempt to fire them 🙂

[David Nieporent]

He surely didn’t bed more of a reason to replace, say, Lloyd Austin or Antony Blinken, did he?

Did he fire them or did they resign?

[Noscitur a sociis]

Feel free to dunk on me, but I actually don’t know whether they notionally resigned voluntarily, resigned because Trump demanded it, or were fired. (I do note that the announcement of his cabinet nominees doesn’t include the language about what happened to the former officeholder as is typical.)

But at any rate, surely there’s no dispute not only that the president can do that with senior officers, but that it’s entirely remarkable to do so? In which case, why wouldn’t that be enough here, when the statute doesn’t even purport to restrict reasons the president can exercise that removal authority.

[bernard11]

He surely didn’t bed more of a reason to replace, say, Lloyd Austin or Antony Blinken, did he?

No. But IG is not a policy position. It is not a job whose duties are to help the President carry out his policies, unlike cabinet officers.

[Lee Moore]

Seems a little cruel, Bernard, but if you’re right that’s a pretty good reason to fire them, no ?

And not to bother replacing them. And they have staff too. Let’s hope DOGE is on the case.

[I Callahan]

Does the term "separation of powers" mean anything to the lawyers in the house? In particular, the ones in the comments here?

It's not Congress' job to decide whether the president can fire workers in the EXECUTIVE branch.

[Dirtman]

I agree. The power of the executive branch rest with a single President. ...With the separation of powers, the Framers divided the powers of the national government into three separate branches: a legislative branch (called Congress), an executive branch (led by a single President), and a judicial branch (headed by a Supreme Court). By dividing political power between the branches, the Framers sought to prevent any single branch of government from becoming too powerful. At the same time, each branch of government was also given the power to check the other two branches. This is the principle of checks and balances. Madison and his fellow Framers assumed that human nature was imperfect and that all political elites would seek to secure greater political power. As a result, the Framers concluded that the best way to control the national government was to harness the political ambitions of each branch and use them to check the ambitions of the other branches. .... James Madison, Federalist Papers #51.

[I Callahan]

The fact that you even had to type that to the "attorneys" at a law blog (one that generally considers itself a little right to most lawyers) is cause for one to believe that the entire legal system needs to be gutted and rebuilt from the ground up.

[Lee Moore]

What would be the enumerated power under which Congress could enact such a “give your reasons” command to a co equal branch of government ?

Can Congress enact a law commanding SCOTUS to give its reasons for not taking cases ? (Ps this is a hypo if you’re puzzled.)

[David Nieporent]

What would be the enumerated power under which Congress could enact such a “give your reasons” command to a co equal branch of government ?

This whole "co equal branch of government" thing is overstated. Each branch has some powers reserved to it, and only it, but the branches aren't equal. The legislature writes the laws, and the president is obligated to carry them out. As for what would be the power: what's the power for Congress to establish IGs in the first place? The N&P clause, presumably. Given that the entire purpose of an IG is to be an independent check ensure that the government department in question is behaving, making sure that they are not being terminated for corrupt reasons seems to be in concert with that.

Can Congress enact a law commanding SCOTUS to give its reasons for not taking cases ? (Ps this is a hypo if you’re puzzled.)

I don't see why not. Congress can even enact a law commanding SCOTUS to take the cases, so that one's much stronger than the presidential one.

[Lee Moore]

what's the power for Congress to establish IGs in the first place?

Excellent question.

The N&P clause, presumably.

And to what enumerated legislative purpose would IGS, or notifications about IGs be N&P supplements ?

(I am willing to grant you a DoD IG as N&P to :

“To make Rules for the Government and Regulation of the land and naval Forces;”

Given that the entire purpose of an IG is to be an independent check ensure that the government department in question is behaving, making sure that they are not being terminated for corrupt reasons seems to be in concert with that.

No doubt. But to what enumerated legislative power is this independent check thing a N&P supplement ?

[Armchair]

"No doubt. But to what enumerated legislative power is this independent check thing a N&P supplement ?"

That's a great question. Why can't Congress simply create a 4th branch of government that is entirely independent of the executive branch? Sure, there's a POTUS with the executive branch, but we're going to fund the "Administrative Branch" of government that doesn't answer to the POTUS. Instead, they'll answer to us and carry out the laws we pass.

[JasonT20]

And to what enumerated legislative purpose would IGS, or notifications about IGs be N&P supplements ?

The enumerated legislative purpose could be whatever provision authorized Congress to create that entity in the first place. But in addition to that,

To make Rules for the Government and Regulation of the land and naval Forces

Sounds like setting how IGs should function and be hired or fired is setting a rule for the government to me.

[Noscitur a sociis]

That clause means “[Government and Regulation] [of the land and naval Forces]”, not “[Government] and [Regulation of the land and naval Forces]”

[JasonT20]

Congress has the power to regulate commerce, not to govern and regulate commerce.

"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States"

It's "a well-regulated militia" not a "well-governed and regulated militia".

Congress can coin money and "regulate" its value, not "govern and regulate" it.

In all of those instances in the Constitution where regulate or regulation are found, that one word is used because adding a second would be completely redundant.

More egregiously, your combining of "Government and Regulation" ignores that it comes after "Rules for the..."

Between the definite article being placed before "Government" and the redundancy of how you want to read it, I find your interpretation a far less natural use of language than mine.

"[Rules for the Government] and [Regulation of the land and naval forces].

That makes a lot more grammatical sense to me. Maybe some grammarian around here that also takes into account how the Constitution uses the English language in other places, can tell us differently. I await further evidence that your reading is the correct one.

[Noscitur a sociis]

If the president has the right to make these summary dismissals, what authority does Congress have to preemptively demand an explanation.

[Armchair]

I don't believe Congress has such a right to pre-emptively demand an explanation, anymore than they have a right to demand why the SCOTUS does or doesn't take a case.

They don't have such a right anymore than the President has a right to pre-emptively demand why Congress doesn't take up a bill.

[Noscitur a sociis]

I don't believe Congress has such a right to pre-emptively demand an explanation, anymore than they have a right to demand why the SCOTUS does or doesn't take a case.

Well, now to make sure I don’t agree with anyone, why wouldn’t congress be allowed to require that?

[Armchair]

Pre-emptively demanding an explanation interferes with the President's article II powers to remove people.

Let's play out how this works. Assume it's not just for IGs, but also for AGs and acting AGs. Same principles apply.

Trump fires Sally Yates for refusing to defend an executive order.
Yates: "I'm not fired, you didn't tell Congress first".
Trump: ...Sends details to Congress...
Trump: Fires Yates
Congress: "Sorry, we're not in session, we didn't get your notice."
Yates: "Ha, I'm still not fired!".

See how this works. It interferes with the President's article II powers to pre-emptively require other items.

[Noscitur a sociis]

Sorry, I’m talking about the Supreme Court part. I agree that it’s much more dubious in the case of presidential actions like this.

[David Nieporent]

That is not "how this works." Where did you get the "Sorry, we're not in session, we didn't get your notice" part from?

It interferes with the President's article II powers

Um, this argument begs the question more than a subway panhandler. The question is what those powers are.

But also, how does demanding an explanation (as opposed to the 30 day notice part) interfere with those powers?

[CountmontyC]

So what happens if Congress finds the explanation insufficient? Can they block the POTUS from firing the officials? If the answer is yes doesn't that interfere with the POTUS's powers? And if the answer is no what is the point of requiring the explanation?

[David Nieporent]

So what happens if Congress finds the explanation insufficient? Can they block the POTUS from firing the officials?

Nothing in the statute says that, no.

And if the answer is no what is the point of requiring the explanation?

Maybe so they can decide whether to impeach the president?

[Noscitur a sociis]

And if the answer is no what is the point of requiring the explanation?

I mean, this one seems pretty easy too. Presumably 1. Congress hoped that by needing to give an explanation and be politically accountable for it the president would be less likely to remove an IG for a bad reason, and 2. Congress wanted to facilitate a potential impeachment if the reason given was bad enough (or insufficient).

Requiring congress to approve of the reason or otherwise substantively limiting the removal authority would be taking things a step further, but congress hasn’t purported to do that here.

[CountmontyC]

So a law with no enforcement power and accomplishes nothing and we are supposed to take it seriously?

[David Nieporent]

So a law with no enforcement power and accomplishes nothing and we are supposed to take it seriously?

I think one should take the law seriously, especially if one has taken an oath to uphold it.

[damikesc]

"So what happens if Congress finds the explanation insufficient? Can they block the POTUS from firing the officials?

Nothing in the statute says that, no."

...then what is the point?

Trump should not humor them.

[Sarcastr0]

Ah yes, the "don't humor Congress" clause of the Constitution.

[David Nieporent]

Trump should not humor them.

"he shall take Care that the Laws be faithfully executed unless he doesn't feel like it."

[JasonT20]

CountmontyC: And if the answer is no what is the point of requiring the explanation?

David Nieporent: Maybe so they can decide whether to impeach the president?

It doesn't even need to be that serious. Congress can just say, "Fine, if you're just going to fire them without valid reasons, we'll take that into account when we consider your nominee to replace them!"

That's the most valuable part of the law, really. If the President has to make a statement about why the previous appointee was fired, then Congress can use that information as they scrutinize the proposed replacement to see if that new person is really better for the job, or just someone that will bow to whatever illegal actions the President demands them to take.

[Lee Moore]

Congress can just say, "Fine, if you're just going to fire them without valid reasons, we'll take that into account when we consider your nominee to replace them!"

I think you need to think this one through a bit.

"You wicked swine, Trump ! If you're going to fire these annoying little men whose job it is to poke and pry into any possible naughtiness that you may be concealing from us within your administration, then we've had it with you. We're just going to sit here and block you from appointing any replacement annoying little men whose job it is to poke and pry into any possible naughtiness that you may be concealing from us within your administration !"

Oh no ! Not the soft cushions !

[damikesc]

You're aware he would not be the first President to not defend laws he disapproves of.

Congress has no right to have any control over the Executive Branch hiring/firing process. He should tell them to go fuck themselves.

[JasonT20]

Congress has no right to have any control over the Executive Branch hiring/firing process. He should tell them to go fuck themselves.

You mean you want to do away with Senate confirmation as well?

Congress has the power to reject a nominee outright and not let them be hired. Yet you think it is some enormous imposition on Presidential authority for Congress to insist on an explanation when someone they had previously confirmed is fired, so that they can understand what the President was going for when they consider the replacement...

[I Callahan]

JasonT20 - dishonest tack, and you know it. The Senate confirmation process is for particular positions, and is CLEARLY constitutional. That's part of the checks and balances.

Creating one out of thin air because you don't trust the president doesn't come close to making that argument.

[JasonT20]

JasonT20 - dishonest tack, and you know it. The Senate confirmation process is for particular positions, and is CLEARLY constitutional.

I'm really not seeing what you're talking about here. Senate confirmation is required for any position that the President will fill under his appointment power. Sure, each individual nominee gets a hearing and vote, but this law was requiring that each individual IG that gets fired needs an explanation. So, what is your point?

[Armchair]

Alternatively...

MacArthur...I'm gonna invade China
Truman...don't you dare
MacArthur...Here we go
Truman...You're fired
MacArthur...sorry, don't see that you sent Congress anything, and I'm gonna need them to confirm it.

[David Nieporent]

1) There is in fact no such statute applicable to generals, so the hypo is fanciful.
2) The president is expressly designated by the constitution as CinC of the military, which implies a bit more control of military personnel than the analogous language in Article II does for civilians (i.e., none at all) .
3) Even if there were such a statute, it would not apply in this way, any more than it does for IGs. Even if the statute is fully constitutional, an IG cannot keep his job by saying "sorry, don't see that you sent Congress anything, and I'm gonna need them to confirm it."

[Armchair]

"The president is expressly designated by the constitution as CinC of the military, which implies a bit more control of military personnel"

Fascinating. You appear to be implying that Congress cannot put preconditions (ie, waiting periods or pre-emptive explanations) on the US President firing a military official from their position. Is that correct?

[Armchair]

"Article II does for civilians (i.e., none at all)."

Also fascinating. You appear to be implying that despite Article II vesting the executive power in the President, the President has no constitutional control over Federal civilian employees.

Is that correct?

[I Callahan]

There is no such statute concerning who Trump fires in the EXECUTIVE branch NOW!

[bernard11]

deleted.

[Phanatic]

"The executive Power shall be vested in a President of the United States of America." Congress doesn't get to tell the President how to wield executive power.

[David Nieporent]

Setting aside the repeated (!) question begging, why not?

[damikesc]

Why should they? They have zero executive power.

Trump should also fire all civil service employees and take that to SCOTUS because those laws are equally invalid.

[David Nieporent]

Why should they? They have zero executive power.

Having zero executive power means that they can't wield executive power; it by no means implies that they can't tell the president how to wield it.

Trump should also fire all civil service employees and take that to SCOTUS because those laws are equally invalid.

Oh, so you're not even pretending to be serious.

[damikesc]

Dead serious.

Illegitimate intrusion on the Executive Branch.

A President should not have Executive Branch employees who work against him.

[David Nieporent]

Against him? Once again: not a king.

[damikesc]

The EXECUTIVE in charge of the EXECUTIVE BRANCH should not have members of the EXECUTIVE BRANCH working against the EXECUTIVE.

Forcing the executive to keep executive branch employees in opposition to the policies voted on by the people is irrational and pretty clearly violates the Separation of Powers.

[Randal]

I actually agree with damikesc that Trump is constitutionally allowed to ignore Congress's rules around hiring and firing IGs.

Trump's just too stupid to understand how those rules actually operate to his benefit.

One-man rule is ultimately far less powerful than control of an effective institution. Trump is on a mission to severely weaken the executive branch, for better or worse.

[David Nieporent]

I actually agree with damikesc that Trump is constitutionally allowed to ignore Congress's rules around hiring and firing IGs.

The rule around hiring an IG is the one specified in the constitution: nomination by the president, confirmed by the senate. I don't see how Trump is constitutionally allowed to ignore the constitution.

As for the rules around firing an IG, I can understand the argument that he's not required to wait 30 days after his decision before removing an IG. That may be right. But what is the argument that he doesn't have to transmit an explanation to Congress at all, as the statute specifies? As long as the force of the decision isn't conditioned on Congress approving the statement, how does that infringe on any power the president might constitutionally possess?
​
​
Also, I want to push back on your description of it as "Congress's rules." It's a law.

[Randal]

I guess in some sense the question is, or else what? He could transmit a message to Congress that he fired them on a whim for no reason. Or, he could not transmit that message. If he doesn't, then what? If Congress attempted to enforce it somehow (other than impeachment), that probably would infringe. Meaning really, it's just a suggestion. (An opportunity actually, but as I said, Trump is too stupid to see it that way.)

[David Nieporent]

I guess in some sense the question is, or else what? He could transmit a message to Congress that he fired them on a whim for no reason. Or, he could not transmit that message. If he doesn't, then what? If Congress attempted to enforce it somehow (other than impeachment), that probably would infringe. Meaning really, it's just a suggestion. (An opportunity actually, but as I said, Trump is too stupid to see it that way.)

I mean, you can say that about any and every law on the books.

[Randal]

No, because most laws a) implicate people other then the President, who are in greater jeopardy, and / or b) can be enforced by the courts.

It's just when Congress tells the President that he, personally, has to do something, and that thing is unlikely to be backed up by the courts, that the law is too "political" in nature to really be binding in practice.

[bernard11]

Isn't spending money wielding executive power?

So you claim the President is not bound by the budget or appropriations bills?

[David Nieporent]

Well, Trump is claiming that!

[damikesc]

No. Spending money is a legislative function.

Might want to read that Constitution. Not super long.

I know Biden did not give two shits about the whole "spending bills originate in the House" requirement, but he seems to be the only one who did not care in the history of the country.

[David Nieporent]

No. Spending money is a legislative function.

Incorrect. Appropriating money is a legislative function. Actually spending it isn't.

But the thing the Trump cultists don't get is that just because something is an executive function does not mean that the executive has discretion in whether or how to do it.

[damikesc]

Does Congress advise the President when they fire Congressional staffers and aides?

[David Nieporent]

Is there a statute that requires them to do so?

[I Callahan]

Are all statutes constitutional?

[Kyle T]

This is stupid. If this gets to SCOTUS, the 30 day notification may be shot down as Presidential appointees serve at the pleasure of the President.

To force a President to keep an appointee for an extra 30 days is ridiculous due to the damage a high ranking partisan can inflict upon the country to spite the administration.

Imagining the leaks, destroyed case information, purged emails, memos and documentation, etc. to prevent a successor from seeing what truly is going on to protect the swamp creatures the fired IGs are protecting.

[Armchair]

Yep. Exactly correct.

[JasonT20]

This is stupid. If this gets to SCOTUS, the 30 day notification may be shot down as Presidential appointees serve at the pleasure of the President.

Begging the question. There is no agreement around here that all Presidential appointees "serve at the pleasure of the President." That's part of the "unitary executive" theory (or the "imperial executive" pejorative for that idea). As a matter of constitutional text, it doesn't say that. Having the "executive power" "vested" in the President doesn't define the boundaries of what that executive power is.

As a corporate analogy, your idea here is that the board of directors (representing the owners of the company) can't create the rules for how employee contracts work and have the CEO be bound by those rules. If the board wants employees to only be fired for cause or at least be given two weeks notice, you're saying that they don't have the authority to do that. The CEO can fire whoever he wants, at any time, for any reason. And the only thing that the board could do about it is to fire the CEO.

This is why this kind of argument get pejoratively called the "imperial presidency". It puts the President not on equal terms with Congress, but above it.

[TwelveInchPianist]

I'm not sure what you guys are complaining about.

Trump wasn't President 30 days before the IG's were removed, so he wasn't required to do squat.

If anybody broke the law it was Biden, although I guess it would be unreasonable for him to notify Congress unless Trump told him ahead of time what he was planning.

[Noscitur a sociis]

That’s cute, but I don’t think the grammar of the statute actually permits that reading.

[TwelveInchPianist]

"An Inspector General may be removed from office by the President. If an Inspector General is removed from office or is transferred to another position or location within an establishment, the President shall communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer."

If Congress intended to prevent a President from exercising this power withing 30 days of his taking office, they could have said so unambiguously.

[David Nieporent]

It does say so unambiguously. If one sets a condition precedent for doing something — and it explicitly does so — and that precedent cannot exist in certain circumstances — and it cannot in the context we're discussing — then, unambiguously, one cannot do that thing under those certain circumstances.

Argue that it's unconstitutional if you want, but don't argue that it doesn't say what it actually says.

[Lee Moore]

Is it your view that if Biden had given the requisite notice 30 days before Trump did the firing, the statute would have been violated because there were two different Presidents ?

[David Nieporent]

I don't think it uses the name of the president in the statute, so I wouldn't think so.

[TwelveInchPianist]

It doesn't let a condition precedent for removing IG's. It doesn't say, "An Inspector General may not be removed from office by the President unless..." or even, "An Inspector General may be removed from office by the President if..."

It says, "An Inspector General may be removed from office by the President. If an Inspector General is removed from office..."

As I said, if Congress intended to set a condition precedent to removing IG's, it could have done so.

[Joe_dallas]

Leftists aghast when trump does it, but praised Obama and Biden when their actions dont comply with the law.

[Josh R]

That was my take in the comments in Josh's thread. Almost all the comments missed that point, so you are truly brilliant David (although I'm hopeful the last step doesn't happen).

[Commenter_XY]

I don't suppose an enterprising Trump Admin lawyer mentioned Myers in all of this, do you, Josh R? No? Hmmmm...

POTUS has the right to remove any Executive Branch employee, period. POTUS' routinely fire government attorney's. Why is this different? Orange Man Bad?

[Josh R]

Congrats, you missed the point (again!). This isn't a debate over whether any specific Trump action is legal or whether some lawyer told him he was on solid legal ground. It's about Trump not giving a fuck about the law.

[Commenter_XY]

Josh R, have you added mind-reading to your repertoire? You sound just like Sarcastr0. Just don't add prognostication into your mix, like Rev Arthur, you're missed a few (the recent election being one).

Please, if so, can you mind read some S&P500 CEO's b/c I'd love to make a killing on that info. 🙂

[Josh R]

Are you fucking kidding me? Any sentient person who has observed Trump over the many decades knows he doesn't care about the law. It's all about him, the strongman.

[Lee Moore]

I agree that Trump does not seem to care about the law, but I don’t really think this is unusual.

Most people care about a different question - what can I do without being punished ?

Apart from natural law ie stuff that is morally objectionable per se, my only interest in the law - aside from the divertissement of VC chatter - is prudential. Am I going to be fined, jailed, sued or forced to run up legal fees ?

I think Trump cares about the law to precisely this extent - what can I get away with in practice ?

I know the President is supposed to be bound to uphold the laws, which puts him in a different position to me, but I think this is where whataboutism has its place. I don’t think too many recent Presidents have paid that more than lip service.

I am shocked, shocked at Trump’s attitude. Much as the policeman was shocked at gambling going on a Rick’s.

I suppose a criticism that could be made of Trump is that he does not cynically reverence the law while in practice doing what he can get away with. And so the rubes might notice.

[Josh R]

No. Trump is different among our presidents. He is the only one who fancies himself a strongman, the next Xi, Putin, or in a democracy Erdoğan or Orban.

[Bruce Hayden]

Mind reading again.

[I Callahan]

Utterly delusional. Dear God, humanity is in trouble when anyone can spew the nonsense you just spewed.

[damikesc]

Did Trump ignore SCOTUS repeatedly as his predecessor did?

Just curious.

[I Callahan]

This is just silly, TDS fueled emotionalism. And this is why the left should never be in charge of anything, ever again.

When a justice system CREATES laws out of thin air to nail a sitting presidential candidate, any such law is already immoral. When a justice system uses a known liar to make an accusation of a sitting candidate and uses lawfare to label him a rapist, the law and decision is already immoral. In his prior term, he did whatever the law allowed him to do, and followed the (incorrect) precedents the USSC set.

In other words, you're utterly full of shit: Donald Trump is the most law abiding president in the HISTORY of the United States. Especially compared to the last two, who are easily the most corrupt men to ever hold office.

When reading these threads, I really feel as though I'm in that bearded Spock universe, where everything is the opposite of reality.

[not guilty]

Drawing reasonable inferences from someone else's behavior is not mind reading. Indeed, that is ordinarily how fact finders determine civil liability or criminal culpability for the accused's state of mind.

[damikesc]

When did he ever violate SCOTUS, out of curiosity?

[I Callahan]

Guilty of what? And don't say "rape", or "paper crimes". Because those are utter crap, and even you know it.

[Michael W. Towns]

You guys don't really give a fuck about the law either. Because you obviously didn't when Obama and Biden were not giving fucks.

So fuck all of you. Just go fuck yourselves. You're just folks with fucking Trump Derangement Syndrome.

So fuck, fuck, fuck, fuck yourselves because you don't care about the fucking law either.

[MoreCurious]

Brilliant, insightful, thoughtful comments like yours, Michael, serve to confirm that we are rapidly becoming a nation of illiterate, inarticulate idiots. Congratulations on leading the way and doing your part to accelerate the descent into the sewer. Keep up the good work.

[I Callahan]

Josh R makes some really, REALLY dumb comments. Someone gets upset and uses the F word, because yes, they were really, REALLY dumb comments.

Along comes Curious to be the resident pearl-clutcher; so sure of his high morals that he can completely ignore the valid points outside those F words.

Here's another inarticulate comment: jam it up your nethers sideways, with a swordfish.

[Kazinski]

Its like nobody remembers the history of the discredited and repealed Tenure in Office Act which said that the President needed Senate approval to fire anyone confirmed by the Senate.

Myers v US threw out a law requiring Senate approval to fire Postmasters passed by the same Congress that passed the Tenure in Office Act.

Taft purposely violated the law when he fired a Postmaster in clear violation of the law that required Senate approval.

The law was tested in the courts, Myers lost, Taft won.

Myers is still good law.

What you should be talking about is Congress passing a law that clearly violates Supreme Court precedent upholding the President's core constitutional powers.

Myers is very clear:
"The President is empowered by the Constitution to remove any executive officer appointed by him by and with the advice and consent of the Senate, and this power is not subject in its exercise to the assent of the Senate, nor can it be made so by an act of Congress."

[I Callahan]

What you should be talking about is Congress passing a law that clearly violates Supreme Court precedent upholding the President's core constitutional powers.

They should, but Orange Man Bad, so the end justifies the means.

[jimc5499]

So challenging the Law is not giving a fuck about the Law.

Funny where were you when Biden obviously didn't give a fuck about the Law when he was trying to defer student loans?

Your fucking bias is showing big time.

[David Nieporent]

Simply violating a law is not "challenging" it. Nobody has yet even pretended to argue how requiring notice to Congress (set aside the 30 day part) is unconstitutional.

[Lee Moore]

How does one get to challenge an unconstitutional law other than by violating it ?

[I Callahan]

Yeah, he ignored it. That's SO much better.

Is this really your take?

[I Callahan]

If the law is unconstitutional, the president SHOULDN'T give a fuck about it. His job is to protect and defend the constitution FIRST.

[David Nieporent]

POTUS has the right to remove any Executive Branch employee, period. POTUS' routinely fire government attorney's. Why is this different? Orange Man Bad?

Even if your first claim is true (which is not what the Supreme Court has said), this is different than firing government attorneys because there's a statute governing this.

[Lee Moore]

As I mentioned on the other thread it kinda matters whether the statute you’re appealing to is within Congress’s constitutional authority.

You could have a go at my Cabinet Officers hypo that you were struggling to understand was a hypo.

[Michael W. Towns]

Was there this much histrionic hand-wringing when Obama was talking about using his phone and his pen to issue orders and make up laws? Because Obama pulled this stuff. But he was "cool" and Trump isn't.

You VC folks need to get a f***** grip. Stop acting like petulant children. Good grief.

[David Nieporent]

There you go, straight to the whatabouts.

[Michael W. Towns]

The whatabouts actually matter. Pretending they don't matter means you're just a partisan.

Have some honesty. Pick apart the times that Obama/Biden allegedly broke the law, or shut up.

This blog used to be cool. Now it sucks.

[Please, Daivd, Seek Help]

You seem really, really upset about this and I hope that in addition to the catharsis you're getting from posting that you have someone in your life who you trust and love who can help you process these things. Honestly. You're going to be okay, I promise.

[I Callahan]

Liberals hiding behind arrogance, snideness and ignorance. The day must end with a "Y"...

[Stupid Government Tricks]

Whatabout == precedent

You a lawyer? You like precedent?

[DaveM]

In other words, anyone who is clever enough to be the very first person to do something wrong gets a free, get-out-of-jail whataboutism pass. Don't you dare criticize precedent-setting, norm-busting behavior.

Well, as long as it's (D)ifferent, we mean.

[Krayt]

Turning the investigatorial and prosscutiorial power of government against enemies is an ancient tradion, greatly preceding this nation, and stymying it was built into the Constitution as a design principle.

Didn't stop innumerable hacks over the centuries from doing it anyway, faceting nothing wrong.

[Bruce Hayden]

Are you talking about Biden, Garland, and thousands of political prosecutions, all the way up to his predecessor (and successor) as President? Which is why Garland, etc, were pardoned by Biden…

[David Nieporent]

You just can't keep from lying, can you? Garland, etc. were not pardoned by Biden.

[Noscitur a sociis]

I am expecting etc. to be indicted any day now.

[Lee Moore]

Maybe not Garland but etc were pardoned.

[David Nieporent]

Nobody

involved in the prosecution of Trump or his minions was pardoned.

[I Callahan]

Which has zero to do with the topic at hand. Biden pardoned people he KNEW were guilty of crimes. His justice department used lawfare to prosecute those they didn't like. Which is 1,000 times worse than anything Trump's done, or is going to do.

You really are delusional.

[I Callahan]

OK, Garland wasn't pardoned. How does that take away from his point in any way?

[I Callahan]

It's called "double standards", Dave. Which is all you have. It's a valid argument, whether you like it or not.

[Brett Bellmore]

Obama was so over the top about it, that even SNL thought he was worth mocking.

[bernard11]

Oh stop with this "phone and pen" stuff.

There are legitimate EO's, and you need a pen to sign one, and possibly a phone to inform people.

You take a perfectly reasonable statement by Obama - that he has powers he can use - and turn it into a very foolish whataboutism to defend Trump's lawlessness.

[I Callahan]

What we're saying, Bernard, is that Obama was more lawless than anything Trump's done. Because your dislike of the man blocks you from that objective point, you can't, or refuse, to see it.

[Snorkle]

Allow me to respectfully suggest that a courtier who wouldn't have been out of place wiping the Sun King's unmentionables has no interest in a factual description of our newly-emerging feudal state.

His role is mostly in step (3), generating excuses for other folks to go along and acclimate to rule by fiat.

[Longtobefree]

"What happens when a President doesn't care whether his actions comply with the law?"

We found out during the Biden administration.

(of course, it wasn't really the president himself)

[Josh R]

What Biden did was very limited compared to what Trump is likely to do (and already has done?). Hopeless partisans cannot help but put forth false equivalencies.

Remember, the test is what if the roles were reversed (Trump did what Biden did, and vice versa). Would you be saying the same thing? I would be saying Biden is the lawless one in that case.

[Michael W. Towns]

Sure you would 😉

Nobody buys that bullshit.

[Stupid Government Tricks]

$400+ billion shifted from rich students to average taxpayers is only inconsequential to people who like spending other people's money.

[windycityattorney]

"Rich students." Might want to take a look at the numbers there buddy. A goodly portion of the students who would have benefited are quite far from rich. The criteria for forgiveness had most of that baked in. Like people who had been paying for 15+years and still owed the entire original principal amount (or more). I would think 'rich' people (as that term is normally understood) wouldn't be in that position. And the only way to get into that position would be that you were on income based repayment and your payments were too low to keep up with the interest accrued...meaning your income was shit.

They should have pulled themselves up by their bootstraps, started a business, got a PPP loan and had that forgiven!! Like actual rich people did to the tune of hundreds of billions.

[Michael Ejercito]

What did they do to deserve student loan forgiveness?

[The Margrave of Azilia]

Voted the right way.

[I Callahan]

Zing!!!

[damikesc]

"Might want to take a look at the numbers there buddy. "

Poor kids would not have the gift of endless time to run up student debt. Their families cannot keep them in college for decades.

Feel free to find a single study that shows that such "forgiveness" (which is just sending the debts of students to non-students) benefitted the rich less than other classes.

[Bob from Ohio]

"What Biden did was very limited compared to what Trump is likely to do"

Yes, that is what happens with precedents, they get expanded.

[Commenter_XY]

It was (D)ifferent, Josh R. We know.

[Josh R]

Nope for two reasons.

Firstly, I just said if you switch what Biden and Trump have done, it's Biden who I would pillory.

Secondly, the same conclusion about Biden applies to both Bushes, Reagan and Nixon. Trump is in a league of his own.

[mulched]

Sure you would. Links or it didn't happen.

[MaddogEngineer]

LOL very limited.

Declaring an amendment to the Constitution ratified on the last full day.

[David Nieporent]

That was stupid, but it was also not lawbreaking. He didn't order anyone to do anything to implement it. He just made a statement about his belief.

[VinniUSMC]

Hey Dave, your partisan is showing.

[MaddogEngineer]

A statement that there was a 28th amendment. Like I said below, one of the corresponding problems is people like you denying the lawlessness of your tribe.

[David Nieporent]

1) Biden is not my tribe.
2) What law does claiming that there's a 28th amendment, or a 29th amendment, or a 432nd amendment violate?

[MaddogEngineer]

Your tribe is attacking the right of center, sometimes by defending the left of center.

Because I know perfectly well if Trump had declared an amendment as part of the Constitution, just as Biden had done, you and those who think like you would absolutely had used it as evidence of his lawlessness and authoritarian tendencies.

MAGA is not my tribe. I don't think Trump should be president. In large part because he often behaves the same way Democrats do in office, just in defense of his preferences.

[David Nieporent]

Because I know perfectly well if Trump had declared an amendment as part of the Constitution, just as Biden had done, you and those who think like you would absolutely had used it as evidence of his lawlessness and authoritarian tendencies.

If Trump had just declared an amendment and done nothing else — and obviously could not have done anything else since his term as president was over — I would have just pointed at him and said, "The buffoon doesn't know how the constitution works." If, as more likely, he declared an amendment and tried to order people to implement it, I would have indeed used it as evidence of his lawlessness and authoritarian tendencies.

[MaddogEngineer]

Thanks for confirming your hackery.

Not all threats to democracy and the rule of law are created equal, obviously.

[David Nieporent]

Not all threats to democracy and the rule of law are created equal, obviously.

I mean, that's pretty obviously correct! Some threats are indeed worse than others!

[MaddogEngineer]

Right. When someone I do not like threatens democracy and the rule of law, it's really bad.

When someone I do like does it, it's just unfortunate and maybe the other side forced them into it.

That's not me though. I've been against pretty much all the unlawful things Obama, Trump, and Biden have done. It's the partisans who claim that the things they agree with are not unlawful.

[damikesc]

"That was stupid, but it was also not lawbreaking. He didn't order anyone to do anything to implement it. He just made a statement about his belief."

Never illegal when you support the guy. We get it.

[Sarcastr0]

What law was broken, do you think?

[I Callahan]

Since no law was broken, allow me to declare a new amendment:

"All attorneys at law must be paid no more than the federal minimum wage, although less is allowed."

Why isn't the above the law of the land? I didn't break any law in declaring it!

[Longtobefree]

" . . . compared to what Trump is likely to do . . . "

Objection, your Honor.
Supposition; not supported by facts in evidence.

In America, there is no future crime.

[Michael Ejercito]

Let me lknow when Trump does something as intrusive as the OSHA vaccine mandate.

[Noscitur a sociis]

I mean, denying people constitutionally guaranteed citizenship seems pretty onerous.

[damikesc]

Questioning a dubious SCOTUS opinion seems to be a good use of one's time and energy.

[I Callahan]

denying people constitutionally guaranteed citizenship

There is NO SUCH THING as "guaranteed citizenship". There is no law in this land - constitutional or statute - that guarantees citizenship to ANYONE unless they're already a citizen.

[damikesc]

You didn't say Biden was the lawless one for the last 4 years.

Hell, I would like to see Trump challenge Biden's blanket pardons.

[Brett Bellmore]

Um, shouldn't you establish that Trump DOESN'T have the legal authority to unilaterally impose that tariff, and those other things, before engaging in a rant about how lawless he is?

[Michael W. Towns]

This entire Post (haha) is nothing more than a partisan rant.

What the hell has happened to VC? This used to be a cool blog.

[hobie]

The rubes took over

[MoreCurious]

Look in the mirror, Michael.

[bernard11]

You're welcome to depart.

[I Callahan]

No, someone has to stick around and make sure the inmates don't completely take over.

[MaddogEngineer]

Yes exactly. Tariffs are another example of Congress ceding its authority to the president. But it's much more satisfying to lump usage of legal authority you don't like with ostensibly extra-legal activities to make your case sound stronger.

It also makes the complainer sound dumb to anyone aware of current law. Some of us have been alarmed for years about Congress abdicating its authority to the imperial presidency, and being accused of being a stick in the mud obstructionist because we need to get stuff done for the American people!

I only want presidents I like to be able use such abdicated authority! When the other guys use it, that's illegal imperialism. Get back to me when someone principally advocates to roll back this stuff.

[Michael W. Towns]

My only real point here. Stop pretending that you care about lawlessness. There's been law-breaking by the executive for decades. If you don't like that, then throw all the culprits under the bus, not just the ones that you hate. And put it in perspective too. We just had a four year run of some pretty spectacular executive tomfoolery. The 28th Amendment! Did Mr. Post pontificate on that nice, shiny turd? And that was mere whimsy compared to all the other Biden lawlessness.

I'm about to take Volokh Conspiracy off my RSS feed. This is pure bullshit.

[David Nieporent]

My only real point here. Stop pretending that you care about lawlessness. There's been law-breaking by the executive for decades.

There are other presidents who have broken the law. There are no other presidents who don't care about the law.

I'm about to take Volokh Conspiracy off my RSS feed. This is pure bullshit.

Oh no!

[Michael W. Towns]

You don't care about the law, David. Stop pretending.

[David Nieporent]

I will give your admonition as much thought as you gave it. Okay, done.

[VinniUSMC]

There are no other presidents who don't care about the law.

Sure Dave. Did you learn that from watching Jersey Shore reruns while huffing whatever garbage it is that made them more orange than Trump? What a hoot.

[Mark Regan]

Yes, even Nixon cared about the law. A President has to care about the law to say, "When the President does it, that means that it is not illegal." Trump just doesn't give a darn.

[I Callahan]

You really ought to get out more. That caricature in your head is really ridiculous.

[Bruce Hayden]

“There are no other presidents who don't care about the law.”

Okay. I get it. You are talking intent here. Biden, Obama, etc, being lawyers, knew the law, but chose to violate it anyway. Normally, I would think that knowing that something was illegal, and doing it anyway, would be more egregious, in terms of intent, than not caring, and doing it.

[David Post]

David Nieporent: There are other presidents who have broken the law. There are no other presidents who don't care about the law.
That, I think, is precisely the point. Of course all Presidents have chafed at the restrictions on their ability to do what they want to do. But if you don't think Trump has taken this to another level, you're not paying attention.

[Social Justice is neither]

Or we're not partisan leftist hacks who have ignored and excused every Democrat abuse over the last 20 years.

[damikesc]

Did Trump repeatedly try and ignore a SCOTUS decision?

Biden did until the very end. He engaged in some actions he said he KNEW were unconstitutional but did them anyway.

Get over your insanity.

[MaddogEngineer]

Um, I wasn't replying to you. I do care about lawlessness.

My issue with many commenters here is (as you say) they are only bothered by the other sides lawlessness. Of course, the parallel problem is disagreement about what is unlawful. The people cheering for DACA and student loan forgiveness don't think those are unlawful.

[Careless]

I don't think I ever even saw anyone try to claim DACA wasn't unlawful, merely that it was a matter of prosecutorial discretion and therefore an allowable violation of the president's duties. But I certainly could be wrong on that

[Sarcastr0]

prosecutorial discretion and therefore an allowable violation

Prosecutorial discretion is not unlawful.

[Brett Bellmore]

Systematic prosecutorial discretion is a violation of the President's "Take care" duty.

[Sarcastr0]

That’s not the law.

Not should it be - how would you draw that line?

[MaddogEngineer]

The problem with DACA is not prosecution forbearance. I agree that is a legitimate executive function, even en masse.

DACA purports to grant work permits/permissions, which is explicitly defined in law and is not a matter of prosecutorial discretion. DACA recipients do not meet that current legal standard for that. Trying to justify them under other provisions of law that do not apply is the lawlessness.

Especially so since Obama publicly insisted he did not have the legal authority to do what he ultimately did via executive order. Not unprecedented, but another brick in the wall.

[Dan Schiavetta]

This post deserves a banner with stars across it. Thanks!!

[Michael W. Towns]

This post is the most absurd partisan screed ever published on VC. And that's saying a lot because Ilya Somin has posted 500 screeds on how illegal immigration is the greatest thing ever.

Gonna be a long four years for you folks. Maybe you should look into anti-depressants if you're not already taking them.

[Commenter_XY]

And Draino, if the antidepressants don't work out.

[Estragon]

“Draino”

LOL!

As brain-dead as this comment was you managed to make it even stupider

[Careless]

Somin's immigration posts are strictly non-partisan. He really, genuinely does not care what their effect on US politics would be. He's an honest-to-god open borders fanatic. For the US.

His opinion on the subject may be stupid and lead to disaster, but it is principled.

[Brett Bellmore]

I absolutely agree. He's a fanatic on the topic, but a principled fanatic: The principle is that absolutely nothing can be allowed to stand in the way of open borders.

[Stupid Government Tricks]

Yep, red stars.

[Commenter_XY]

Do you think we need the hammer and sickle to go with the red stars, or would that be gauche?

[Bob from Ohio]

God this is a great post! Not pacing himself at all in his hysteria.

[Commenter_XY]

Dare I bring back an 'Oldie'.....

Worst Post Ever!

[David Post]

Bob from Ohio:God this is a great post! Not pacing himself at all in his hysteria.
Commenter_XY: Dare I bring back an 'Oldie' ... Worst Post Ever!"
I find it so interesting that certain readers who never fail to find my posts idiotic, senseless, hysterical, moronic, etc. etc. - like these two - nonetheless keep reading them! Why is that? Are they checking to see whether I have finally realized the error of my ways?
If Bob from Ohio got posting privileges here on the VC, I might read the first one or two, hoping that, in essay format, he can write something other than the senseless, hysterical, ad hominem, etc. stuff he posts in the comments. But after a couple of losers I'd stop reading, because I have better things to do. So I repeat my question: Why does he keep reading my posts?

[Commenter_XY]

Professor Post, you've learned nothing since October. Go back and re-read my prescription. You'll learn a lot.

Let's be fair. Is Myers the relevant precedent?

[Estragon]

“you've learned nothing”

Draino dude has opinions!

[Artifex]

So I repeat my question: Why does he keep reading my posts?

Perhaps for the same reason that there are so many Youtube videos of overwrought progressives reacting to Trump being elected ? It appears unreasoning hysteria is a bit entertaining to some folks.

[Lee Moore]

Why does he keep reading my posts?

Because you bring passion to the table. It is as if Scarlett O'Hara is blogging. Though not so decorative of course.

[damikesc]

Making fun of you can be enjoyable, for starters.

Weird, never see Blackman whining about people bitching about his posts as much as you do.

[MaddogEngineer]

I am bothered by this. It's why I never voted for Trump, and hoped a Republican alternative would arise, especially after Jan 6.

But I'm not terribly bothered about this, after Obama's Iran nuclear deal, DACA, student loan forgiveness, mal-enforcement of immigration law, and declaring a 28th amendment to the Constitution on the last full day of a presidency. (It's also the firing of advisory board/committee members, like Sean Spicer, on the first days of a presidency.)

It's not whataboutism, it's Mitch McConnell pleading with Harry Reid not to abolish the judicial filibuster. Because the bad faith Democrat pretending to adhere to the law, while devising creative ways to circumvent this inconvenience so they can say they are obeying it, which has made the other side not care. No matter how much anyone wants to blame one side.

Congratulations! You're the dog that finally caught the school bus.

[TextFirst]

Yes, exactly. One man rule over the US was instituted by Obama, and Obamacare spelled the end of any meaningful limits on federal power. Team Blue is just furious that Team Red is using the rules that they invented.

[Katall]

Was not Obamacare approved by Congress?

On thing we might agree upon is that Congress has abdicated its role as the most important branch, both under Democrat and Republican administrations. This is exacerbated by the fact that Congress cannot pass a consequential law since 41 senators can block anything and there are 41 senators on each side who will not compromise on anything. Article II has no such limitations.

[JoeFromtheBronx]

I was here when the Affordable Care Act was passed.

Certain people were quite concerned about how it brought the end of all limits on congressional powers to pass a commercial regulation backed up by a tax penalty.

[Katall]

Perhaps. But it was a law passed by Congress not a fiat of one person.

If Congress can pass an act and get it into law (either with a president's signature or with an override) I would have much more respect for the process.

That will not happen now, because Republicans will not compromise on anything. I would be surprised if the House can even get a budget passed.

[Doug Heffernan]

Why is it expected that the response should be just as bad or worse?

If some party takes a principled stand that actions of a current administration are lawless/unconstitutional, why, when the objecting party takes power, must the response be an escalation, with actions that are similarly bad or worse, rather than a reversion to the prior norm, rule, or law?

If the objection really was principled, the critics should try to find the way back to the prior norm or rule, not use prior administration lawlessness as justification for even more lawless actions.

[PeteRR]

Reversion to the norm is how the GOP establishment remained the controlled opposition for decades.

[shawn_dude]

"mal-enforcement of immigration law"

Obama deported more illegal immigrants than Trump. He still holds the record for the number of immigrants deported in a single year. Trump and Biden are nearly tied for their first terms and Biden had COVID lockdown during half of it.

[NvEric]

Law is arbitrary spittle designed for control of the uncontrollable - it means nothing and is useless ink. Since 1945 the situation for our country has regressed further than ever.

Suck up the suck and move on.

[Michael Ejercito]

Are IGs executive or legislative employees?

[JoeFromtheBronx]

Yes. Multiple people are like "he doesn't know."

I'm with "and/or he doesn't care."

And, it doesn't have to be that he knows every specific rule. He can send a general message that he wants certain ends and doesn't care about the niceties. And, 1/6 shows the number of restraints.

Impeachment is the final limit, yes, but Congress can also block things he likes. As we saw with Hegseth, they aren't much interested in doing that either.

For instance, Pam Bondi or Kristi Noem aren't Hegseth or Kennedy Jr. level bad. But, they have authority over various bad things he did. If you don't like him pardoning 1/6 defendants or breaking the law with his birthright citizenship EO, you can go after his Cabinet picks. Going after the king's ministers was a standard thing if you couldn't go after the king. And, SCOTUS treated Trump like a king.

[I Callahan]

I was waiting for Garland to do that to Biden, based on the many bad lawfare decisions Biden directed his DOJ to perform. Funny how that didn't happen either. And I'd guess that if I read all of your comments over those 4 years, you never once complained about that.

As for the SCOTUS - if you can explain to me why ANY of the decisions they made that benefited the Trump administration were bad or incorrect as a whole, I'm all ears. It'll be BS, but I'll listen anyway.

[dwb68]

Checks and balances: Congress can withhold funding, or nominee approval, or lots of things.

Fact is, gop is fine with it.

[StephenM]

Trump is not bothered with improving government so your conequences are fine with him. He wants to destroy any oversight of his imperial powers and money grubbing so not having any AGs or working deprtments is fine with him

[Michael Ejercito]

Why would he need AG's?

[I Callahan]

Actually, this is exactly backward from reality.

Government has been an utter mess for decades. The whole reason for hiring outsiders to take over departments, and to cut out the fat and bad decisions, is PRECISELY to improve government.

I didn't think a person's opinion could be as wrong as yours, but apparently I was wrong as well.

[damikesc]

Speaking as a Trump supporter --- PLEASE refuse to pass funding.

The improvement in the country would be quite noticeable.

[Lee Moore]

My assumption is that the Trump team is quite happy to go to court on this as one of many routes to getting SCOTUS to affirm the “You’re fired !” constitutional standard.

If they just wanted to fire the IGs straight away they’d simply repeat the firings with the requisite legal hoops done. But in such a case they’d be left with the DC Circuit ruling against them, and SCOTUS declining to take the case as it would be trivial (ie 30 days pay.)

[Armchair]

Indeed. This is likely an "easy win" for Trump in the court system.

The "simple way" would be to take the IGs and tell them to go home with pay for 30 days, but no responsibilities. Then fire them.

[John F. Carr]

I feel like they shouldn't have standing, or should not be entitled to more than 30 days pay. Somewhere out there is a judge who is itching to grant an injunction against Trump.

[Katall]

Maybe you will find that judge in Amarillo or Fort Worth.

Whoops, those were the judges that were itching to grant injunctions against Biden.

[John F. Carr]

See https://news.bloomberglaw.com/us-law-week/birthright-citizenship-suits-show-liberals-target-first-circuit for the courts liberals like when going after Trump.

[Katall]

One relatively big difference. Filing a case in Amarillo pretty much guarantees the judge. Filing a case in, say, Washington state, not so much.

[Lee Moore]

The object of the exercise is to guarantee the result. Picking the judge is merely incidental to that.

There are seven active judges on the US District Court for the Western District of Washington and four on the US District Court for the Eastern District of Washington.

Nine of the eleven are Biden appointees. But that's OK because the other two are ..... Obama appointees.

[David Nieporent]

And yet, somehow, this didn't get assigned to any of them.

[I Callahan]

They really seem to like the ones in Hawaii, however. I wonder if they're also all Biden and Obama picks?

[CommentMonkey]

It seems to me the injunction route has some promise. The notification requirement is not to the ousted IG, it is to Congress. This suggests the purpose is not to provide some sort of de facto severance to the ousted IG but to empower Congress to exercise oversight. 30 days' pay would not cure the harm to Congress in being denied its oversight role.

I think an ousted IG could challenge the dismissal and argue for an injunction requiring reinstatement until the detailed reason for removal is given to Congress plus 30 days. If such an injunction is granted, it would then be incumbent on the administration to give proper notice, wait 30 days, and then seek dismissal of the lawsuit, and termination of the injunction, on mootness grounds. This would make the removal process more difficult and slower than if the administration had just followed the law. Not a perfect deterrent but not bad.

[David Nieporent]

The notification requirement is not to the ousted IG, it is to Congress. This suggests the purpose is not to provide some sort of de facto severance to the ousted IG but to empower Congress to exercise oversight. 30 days' pay would not cure the harm to Congress in being denied its oversight role.

I think this is right, which is why your next sentence is wrong. An IG does not have standing to seek injunctive relief for a harm done to Congress.

[CommentMonkey]

But my thought is the IG suffers at least incidental harm - enough to get into court. After all, the IG would have the advantage of two paychecks coming in while the notice period runs. That's not nothing - it seems to me (not a standing expert, to be sure) that denial of those two paychecks is particularized harm. So I would think the IG has standing to challenge dismissal without notice.

Then, once he's gotten past the courthouse door, the IG can argue that the injunction cannot expire in 30 days (even though the harm to him arguably ends in 30 days) because the clear intent of the statute is to require notice plus 30 days. Sure, the purpose of the statute is to force cooperation with Congress, but the means of doing so is to confer a benefit on the IG. Thus, I would think the IG has standing to enforce that benefit.

[David Nieporent]

But my thought is the IG suffers at least incidental harm - enough to get into court. After all, the IG would have the advantage of two paychecks coming in while the notice period runs. That's not nothing - it seems to me (not a standing expert, to be sure) that denial of those two paychecks is particularized harm. So I would think the IG has standing to challenge dismissal without notice.

Why isn't that just a claim for money damages, rather than a claim for injunctive relief?

[CommentMonkey]

The IG could plead it as an injunctive relief case or plead injunction/damages in the alternative. Argue that a damage-only remedy would contradict the language of the statute requiring detailed notice of the reason for removal. Seems to me a judge could conclude that injunctive relief better complies with the statute. Not saying it's a sure thing but I can see a judge not wanting to let the administration off the hook with a piddling damage award when the statutory violation is so clear - the statute requires more than just a 30-day waiting period.

[Noscitur a sociis]

But it doesn’t impose any substantive requirement on the notice, so how would an injunction redress the IG’s injury?

[CommentMonkey]

The president has to give a "substantive rationale, including detailed and case-specific reasons." Seems to me that's at least arguably a substantive requirement concerning the content of the notice. So I'd argue the injunction must continue until the president submits proof that compliant notice was given and then 30 days passed.

[I Callahan]

The president has to give a "substantive rationale, including detailed and case-specific reasons."

Congress made that law in direct violation of the separation of powers. Because no one has challenged yet doesn't change that. So that said: no, the president does NOT have to give such a rationale, until the USSC says he does, which is quite doubtful.

[Flink]

Something important is being left out in the "one man rule" and impeachment discussion, not to mention the political asides. I'm not sure whether the 30-day notice law is constitutional, but if it is, the first step is for Congress to invoke it. I'm not following this issue very closely, so I might be missing something, but I don't remember having heard of any congressional action challenging the President.

There would be no issue of standing there, I'd think, just the constitutionality of the law and the political question doctrine.

And that's where the action is, it seems to me. Not in the courts but in the politics. Of course readers here tend to focus on the law, and that's why I'm a dedicated reader. But what Trump is testing here is whether his political capital beats that of congress. He's betting it does, and congress seems to think he's right, for the obvious political reasons.

Trump and congress may be right on this. Maybe the voters in all of those districts and states don't mind the President doing this. Absent some constitutional guardrails, that is exactly what the Constitution guarantees -- not that there won't be one-man rule, but that despite the checks and balances among the branches, that the voters may decide to let the political branches get away with this.

The president's disregard of the law is a big issue for me, but the bigger issue is the national political "whatever" that allows congress and the president to act lawlessly because congress will not invoke its clear power to at least ask the court to decide whether the law they passed and a president signed has any force of law at all, or is bounded only by the people's attention to it or not.

The Constitution does not guarantee much of substance; its primary guidance is establishing a government form, with checks and balances, a court to resolve cases and controversies, and a wide open and accessible politics that may be used or not.

Donald Trump is our test case.

[Noscitur a sociis]

What does it mean for congress to “invoke” it?

[Roger S]

Trump is just carrying out his electoral mandate. Get with the program.

[Josh R]

Presidents almost always overread their mandate. A betting man would take the Dems to win the House in 2026.

[Roger S]

Probably. That is why Trump has to act quickly, to get things done.

[Josh R]

It doesn't matter how fast he implements if he has overreached on what the people want.

[Brett Bellmore]

Sure it does. The ACA is still around, isn't it?

[Josh R]

The Democrats were routed in 2010 in part due to the ACA. It wasn't until 2017 for more people to favor it than oppose it.

[JoeFromtheBronx]

People who "opposed it" generally opposed specific parts of it. They liked the key parts other than the individual mandate, which is not surprising -- what child likes eating vegetables with their dinner? Also, the numbers of "did not like" that made it a majority included people who wanted it to go further than it did.

It is quite normal for incumbent parties to do badly in mid-term elections. The House Dems (they didn't lose the Senate & of course retained the presidency) had to deal with multiple issues.

One summary: "The heavy Democratic Party losses in 2010 were attributed to anger at President Obama, opposition to the Affordable Care Act and American Recovery and Reinvestment Act, large budget deficits, and the weak economy."

The "opposition to ACA" was selective though not denying it was a factor. It also was misleading but that's how politics work sometimes, yes.

[I Callahan]

35 years in the healthcare sector here; mostly concerned with finance and analytics.

What I can tell you is that patients who deal in the healthcare world now hate it. They know all of the things wrong in our system are directly due to ACA. Doctors, hospitals, plans, provider groups all feel the same way.

[I Callahan]

The only ones whining about Trump overreaching are the ones who'd think he's overreaching if he'd done nothing. The rest of us think he's doing just fine, and now that they're seeing direct results in a hurry: you'd better hope there's a live boy or dead girl situation, because if this keeps up, he's going to pick up 40 seats in the house and the establishment wing in the senate will be packing its bags.

I don't know what echo chamber you live in, but you may want to come out of it once in a while.

[Noscitur a sociis]

I don’t remember Trump campaigning in a promise to fire the police inspectors general that he himself appointed slightly more expediently than a statute says he can. But to be fair, I didnt make it to any rallies.

[JoeFromtheBronx]

This is somewhat silly.

It was quite apparent he played fast and loose with the rules & there was significant talk about "getting people" and so on.

No one should reasonably be surprised at what they are doing here and in other early executive goings on. It is following not only the general plans (Project 2025, what multiple Trump supporters including himself said), but also general Trump behavior.

"I didn't expect that known reckless arsonist to break the law to be able to burn down the house at 125 Maple Lane, but I never went to his talks."

[tuphat]

Outstanding post, truly. "I hope they're right, because it is what we've got." I'm going to adopt this as my mantra, to sleep better at night. Hope you don't mind.

[wreckinball]

The IG's suck. They're sole purpose recently has been to cover up government wrongdoing. So there is the rationale.

30 days will be over before you notice I promise.

So yeah its pretty close to "could care less",

[Dan Schiavetta]

What trash the commentariat has become on this site.

Folks, Obama, who taught Con Law at the most prestigious law school in his home state, was perfectly aware of what he was doing. He repeatedly said that some of his executive orders would have to be ultimately approved by Congress. But he was dealing with a Congress which would not pass anything he proposed.

By contrast Trump, ignorant of the Constitution, knows he could get a prostrate Republican Congress to approve almost anything he wants to do. But he doesn't care.

[mulched]

Ah yes, the "Congress didn't do what I wanted" exception to illegal executive action.

Obama was just as lawless as any recent Prez. Thanks for this confirming example.

[DaveM]

What? He was "perfectly aware of what he was doing" -- and that somehow entitles him to be forgiven for waving around the "pen and phone" of his Imperial Presidency?

It should obviously be the reverse. All you're saying is that Obama is guilty by his own admission.

[Kyle T]

Obama was an adjunct professor who totally understood what he did was unconstitutional. HE DIDN'T CARE! He had a phone and a pen. He was 0-fer at the Supreme Court for his un-Consitutional overreach, as I believe was Biden.

In this instance, as IGs are appointed by and serve at the pleasure of the President, it is highly possible the 30 day notification is killed by SCOTUS.

Remember, Clinton fired at 93 AGs including Whitewater investigators at the start of his term (no media backlash). The media did whine when Bush fired 7 in 2006. But this was fine as Congress had not tried to put restraints on yet.

Getting these restraints off may be a precursor to other challenges of the status quo.

Too many progressives have underestimated Trump, as he is not ignorant. He may not be eloquent, but he seems to always have a long game.

(https://apnews.com/article/colombia-immigration-deportation-flights-petro-trump-us-67870e41556c5d8791d22ec6767049fd)

[Kyle T]

You do realize he had massive majorities in Congress until the 2010 election, right? If you believe "he was dealing with a Congress which would not pass anything he proposed," then the proposals must have been massively un-Consitutional.

It is true from 2011-2012 the Tea Party folks would stop the un-Constitutional overreach.

There is a reason he is the only re-elected President to get fewer votes in re-election than in the first term.

[Dan Schiavetta]

Republicans were, from his first day in office, pledged to block anything he proposed. He needed a filibuster-proof majority to get anything through. He had one for only about four months in 2009.

[The Margrave of Azilia]

If credentialism is what you're into, John Yoo is a law professor at Berkeley.

He presumably knew what he was doing when he said Presidents have unilateral power to set policy in many areas where one might think there were Constitutional checks and balances.

But credentials!

[Dan Schiavetta]

Way to miss the point.
Obama acted only when it was clear Congress wouldn't pass anything. His executive orders were a last resort. One can sit on one's credentials, or one can do what has to be done.

[Noscitur a sociis]

You may want to stop helping.

[Brett Bellmore]

If it was unconstitutional as a first resort, it was unconstitutional as a last resort. "But, Congress refused to enact a law I wanted!" is a plea to allow unconstitutional action, not an argument that it wasn't unconstitutional.

[RedheadedPharoh]

You don't understand the Democrat Theory of Law.

What a Democrat wants it lawful because their hearts are golden and their intent is pure, what a Republican wants is unconstitutional due to improper animus.

[TwelveInchPianist]

"Obama acted only when it was clear Congress wouldn't pass anything."

If only she had said yes...

[damikesc]

"Obama acted only when it was clear Congress wouldn't pass anything."

Congress is obligated to pass bills the President wants passed?

Since when?

The President has no power to demand Congress pass anything.

You might want to investigate this whole "Separation of powers" thing a bit more.

[Sarcastr0]

Do you think Obama forced Congress to pass stuff he demanded?

[Brett Bellmore]

That's not what he said. If Congress didn't pass stuff he demanded, he took that as an excuse to do it without any statutory basis, rather than accepting that he couldn't do it.

[Sarcastr0]

No that is what he said. He talked about Presidential power to demand.

Obama also changed the scope when Congress didn’t act, and gave plenty of notice to his opposition.

It’s telling you think the violation is clear but also need to invent new law to make it so.

[damikesc]

Brett could read. Why can't you?

You JUSTIFIED Obama's actions because "Congress would not pass anything". Congress is under zero obligation to pass anything. It does not justify the President simply wielding power he did not have.

[damikesc]

"Obama also changed the scope when Congress didn’t act, and gave plenty of notice to his opposition."

Again, more "Well, Congress did not do what he wanted, so Obama was justified in violating the law" justification.

Just admit your feelings on the topic.

[I Callahan]

Ugh...

[ReaderY]

Agreed.

[Brett Bellmore]

I mean, seriously, let me say this again:

You're going to denounce Trump as lawless without bothering to establish that any of the actions are actually illegal? And you didn't even have second thoughts before hitting "submit"?

[David Nieporent]

There is no way to rationally dispute what the law says and that Trump didn't comply with it.

[Brett Bellmore]

Fire the IGs? Good case for it being legal because the statute it violates is unconstitutional under existing precedent. I guess we'll find out what the Court thinks soon enough.

"Unilaterally impose 25% tariffs on Colombian imports? "

Pretty sure he actually has that power, legally. Bad law, granted, but there you are.

"Withhold federal disaster relief to cities that don't assist ICE agents carrying out their raids?"

Make the case that it's illegal.

"Halt all payments due for dispersal under NIH research grants until grantees dismantle their DEI programs?"

Legal? Under the 14th amendment it's probably mandatory!

"There is no way to rationally dispute what the law says and that Trump didn't comply with it."

There's the problem: You and Post think the case is so bloody obvious that you don't actually have to make it!

[David Nieporent]

It is so bloody obvious that he did not provide notice to Congress 30 days before firing these people, specifying his reasons.

[Brett Bellmore]

Right, and I just said that there's a case under existing precedent that law is unconstitutional. The rest of it you don't seem to even want to bother making a gesture towards arguing.

[Armchair]

Because they don't have a good argument for it.

It's easier to say "Trump is evil, he's breaking the law!"....rather than look at the law and realize...yeah, that's gonna be unconstitutional.

[Noscitur a sociis]

There's the problem: You and Post think the case is so bloody obvious that you don't actually have to make it!

I mean, I don’t really think a detailed explanation of how Trump didn’t follow this statute should be necessary.

[Armchair]

What IS necessary is a detailed explanation of how this law is constitutional to begin with.

[David Nieporent]

I mean, there's a presumption of constitutionality; someone who violates a law has the burden to show that it's unconstitutional.

[Jason Cavanaugh]

Not if it's Trump, duh.

[Michael Ejercito]

Are IGs legislative or executive officials?

[damikesc]

If Congress decides to fil suit, Trump's people will show it is unconstitutional.

How else is he going to demonstrate it?

[Armchair]

A "presumption" is not an explanation.

[Sarcastr0]

"What IS necessary is a detailed explanation of how this law is constitutional to begin with."

DMN is going after the 'necessary' not the 'detailed explanation' bit of your post.

[I Callahan]

To someone who can read the constitution objectively, it's fair to presume that Congress had NO POWER to enact such a law, because it violates separation of powers. IG's are part of the executive branch, and Congress doesn't get to put strings on how the people are removed.

I mean, there's a presumption of constitutionality; someone who violates a law has the burden to show that it's unconstitutional.

How far down this slippery constitutional slope are YOU willing to travel.

[David Post]

Brett Bellmore: "Withhold federal disaster relief to cities that don't assist ICE agents carrying out their raids?" Make the case that it's illegal.
I think that's not too difficult to do. There are two strands of constitutional doctrine that combine to make this unlawful. One involves the notion that the federal government cannot "commandeer" state enforcement powers to accomplish its goals; the feds can't order the governor of X or the mayor of Y to use X or Y resources in support of federal government policy. Second involves the law of "conditional grants"; the feds can't make an end run around the anti-commandeering principle by saying "We're not ordering you to use your police force to enforce our immigration policies, but we won't give you any of the disaster relief money you are otherwise entitled to unless you do so."
What do you think?
Bellmore: "Halt all payments due for dispersal under NIH research grants until grantees dismantle their DEI programs? Legal?"
Also pretty straightforward. I'm certain there is something in the thousand pages of enabling law regarding the NIH that says: "The NIH shall disburse funds in accordance with ...." or something like that. And I'm certain that the NIH has thousands of contracts that say, in effect: "If you, University of Nebraska Medical Center, do X, we will pay you Y on the 15th of every month." These are government obligations, and it is unlawful - a violation of the enabling statute and contract law - for the government to come in and add some new qualification to its obligation. ("Actually, we're not going to disburse that money to you unless you put Trump's picture in every classroom ...").
You seriously think it's lawful for them to do that??!

Legal? Under the 14th amendment it's probably mandatory!

[Brett Bellmore]

Look closely at what I was complaining about: That Post launched straight into his rant about Trump's illegality without feeling any obligation to establish that anything Trump was doing was illegal.

I think for some of this stuff, like the threatened tariff on Colombia, that's a burden that can't be met. For other things, like Trump's efforts on birthright citizenship, easily met. Most of it's in the middle ground, where maybe you can do it, maybe you can't.

But Post didn't feel any obligation to try, just launched straight into the rant. THAT was what offended me.

So, on his DEI order. While the anti-empoundment act IS a thing, (Which Trump will probably shortly be challenging the constitutionality of...) it's typically entirely legal for a President to temporarily delay spending appropriations.

And, yeah, I think a fair reading of the 14th amendment probably actually makes federal DEI offices and their activities outright unconstitutional; They are literally engaged in deliberate, straight up, racial discrimination. So Trump is on darned strong ground cutting off all funding for DEI.

[David Post]

Brett: He's not merely "cutting off all funding for DEI." He's cutting off funding for cancer research at institutions that have not yet eliminated their DEI programs. That's a pretty big difference,
And yes, I launched straight into what you uncharitably call my "rant" without feeling the obligation to establish that anything Trump was doing was illegal, for several reasons, First, I thought it was obvious - even Lindsay Graham, for crying out loud, grudgingly admitted that the IG firings were "technically illegal." But more importantly, the whole point of my post is that is doesn't matter to Trump whether it is or isn't legal - he's going to do what he's going to do, because he realizes that nobody can stop him.

[Brett Bellmore]

Straight up question: Can the federal government, within the 14th amendment, pay people to racially discriminate?

No, I don't believe they can, constitutionally, for all that they certainly have been lately.

So I think it is entirely proper, actually constitutionally obligatory, for the federal government to stop funding institutions engaged in racial discrimination, until/unless they stop.

[MaddogEngineer]

Your problem is that nothing DEI is mandated by law, AFAIK. It's all been using the statutory discretion of the executive branch (president) organizing/reorganizing federal agencies. Biden built these up over the past 4 years, as I think it was below the first Trump administration's threshold to notice until the very end, when he tried to executive order outlaw CRT.

I have not heard anyone say Trump was violating current law by his reorganization executive orders implemented by designated acting officials. Where there might be a violation, yet I have not heard much about this yet, is how these DEI civil service employees are subsequently treated. I believe at work, they have been placed on paid leave, not (yet) fired outright. I assume the people orchestrating this understand the rules of the road here.

It's illegitimate to conflate things Trump is allowed to do legally, with those that are contested, to make the case that Trump doesn't care. Maybe not exactly personally, but he's overseeing people who have apparently paid close attention to what the law allows. Starting with designating acting officials across the bureaucracy to carry out his new executive orders.

(Not addressing IG firings or grant freeze here.)

[I Callahan]

One involves the notion that the federal government cannot "commandeer" state enforcement powers to accomplish its goals; the feds can't order the governor of X or the mayor of Y to use X or Y resources in support of federal government policy.

There's a difference between a local police department not getting in the way of the federal government enforcing a federal law, and one where the local police department are helping hide lawbreakers to protect them from the federal government.

Second involves the law of "conditional grants"; the feds can't make an end run around the anti-commandeering principle by saying "We're not ordering you to use your police force to enforce our immigration policies, but we won't give you any of the disaster relief money you are otherwise entitled to unless you do so."
What do you think?

Same argument. If the local authorities are ACTIVELY standing in the way of federal law enforcement, I'd say they have every right to do the above.

Using your theories above, do they apply here:

https://en.wikipedia.org/wiki/Little_Rock_Nine

[Bruce Hayden]

Well maybe. But whether he was bound by the law is completely different. Did that requirement in the IG law infringe his plenary, Article II, powers and duties?

[jimc5499]

They're too busy bending over backwards to justify Obama and Biden doing the exact same thing.

[SRG2]

We know that Trump doesn't care what the law says. We also know that his supporters, likewise, don't care. If Trump wants it, that settles it. We can also be pretty sure that the GOP will not impeach him for anything remotely within possible actions. I await a succession of bills which, taken as a whole, will amount to an Enabling Act, and whose passage will be loudly cheered by Trump's supporters here.

[Kyle T]

Party like its 2009 with it's incoming President not caring what the law says and supporters likewise not caring. If Obama wanted it, it was settled. The Dems were never going to impeach him for anything remotely within possible actions.

Thank goodness he kept getting shut out at SCOTUS, often 9-0 or 8-1.

Trump could face that same fate.

[David Post]

Kyle T:Party like its 2009 with it's incoming President not caring what the law says and supporters likewise not caring.
This is a VERY common argument made here by Trump supporters, and, respectfully, I'll say that it reminds me of the way12-year olds argue: "He did it first!!" "He started it!@!
It's a way of avoiding the question: is Trump acting lawfully, or not? imho.

[I Callahan]

Isn't that called "precedent" in legal circles?

[The Margrave of Azilia]

"an Enabling Act"

Just come out and say it - Trump is HITLER! There, didn't that feel good?

[David Nieporent]

Seems kind of slanderous.

To Hitler.

[MaddogEngineer]

Yeah, you're not a tribalist.

You know who else had high public approval ratings? ...

[David Nieporent]

Taylor Swift?

[SRG2]

I don't think he is. But I think he is strongly authoritarian, and that the GOP Congress will gladly roll over for him and pass whatever legislation he wants in order for him to get rid of obstacles, regardless of constitutional constraints, and I am sure that you and other Trump supporters here will agree with it.

In sum, he is not Hitler, but he will use tactics from the Hitler playbook to attempt to accomplish his goals.

You should read Hitler's Enabling Act speech. Much is of course entirely irrelevant to current circumstances. (And his evident antipathy to Communism should serve to dispel the misrepresentation of National Socialism as left wing - but it won't.)

https://www.worldfuturefund.org/reports2013/hitlerenablingact.htm

[The Margrave of Azilia]

"I am sure that you and other Trump supporters here will agree with it."

It's only days into his term and I've already criticized his TikTok decree.

I'm not so sure I like his citizenship decree, either.

I don't even agree with this "Gulf of America" stuff.

But then, I didn't vote for him this time around, I went third party.

Of course, my offense is thinking that on key issues, Trump is a *lesser* evil. Which carries the unforgivable implication that Democrats are worse. But how can anyone be worse than Trump?

We all know that anyone who doesn't throw the word "Hitler" around in connection with Trump is a supporter of Trump.

[SRG2]

I had incorrectly assumed from your recent responses that you are a supporter of Trump, hence imputing to you a level of stupidity, venality, dishonesty and authoritarianism that is evidently unjustified. /not sarc

My apologies.

[The Margrave of Azilia]

You should consider that a lot of Trump "supporters" are actually lesser-evil types who think his opponents are worse than him.

I voted against him because I thought that, with his support for many abortions, and his glossing over the national debt, he was moving in the progressive direction.

Thus from the progressive standpoint, I'm no better than a Trump supporter and you shouldn't have apologized.

[SRG2]

I don't assume that all Trump voters are Trump supporters. I do assume that someone who defends every action of Trump's regardless of how crass, malign, or stupid is indeed a Trump supporter.

I don't care about whether someone is a progressive or a conservative - my political model requires both. It even requires authoritarians - as I've noted, someone has to obey the orders. It doesn't require the reflexive intolerance, triumphalism and self-inflicted stupidity that characterises so many Trump supporters.)

Apology remains.

[Bob from Ohio]

"he is not Hitler, but "

Only the stuff after "but" reflects the speaker's belief. You think Trump is like Hitler.

[SRG2]

An old and tired rhetorical device which is clearly not universally true.

The "but" merely indicates that, for reasons later to be stated, Trump is not the complete opposite to Hitler.

You're a fuckwit, but not as big a fuckwit as Riva.

[damikesc]

Trump likes dogs. Hitler likes dogs. Ergo, Trump is just like Hitler.

Might be a fun party game ("Let's play six degrees of Hitler!") but it is asinine as any type of rhetorical device.

[Lee Moore]

And his evident antipathy to Communism should serve to dispel the misrepresentation of National Socialism as left wing - but it won't.

🙂 Trotsky is on the phone and will be with you shortly, when the doc has removed the ice-pick.

Never was a more bickering, fratricidal and schismatic lot than the socialists. Unless it be the Protestants.

[SRG2]

Had Hitler excoriated this Communist group or that one, you'd have a point. But he didn't. He attacked Communism. There's a difference between attacking the Judean People's Front, and attacking the idea of liberating Judea.

[damikesc]

German Communists survived under Hitler in a high proportion than they did under Stalin. Quite a bit higher, actually.

Ergo, Stalin hates Communism while Hitler clearly supports it.

Makes sense.

[I Callahan]

He viewed them as competition to power, NOT as competition in philosophy. Two good football teams have a lot in common, but neither wants to lose to the other.

Same principle applies.

[MaddogEngineer]

The key difference here is that the Nazi enabling acts were passed AFTER Hitler came to power.

Trump is just using the existing statutory powers of the imperial presidency to do most of this stuff legally. Some of us conservatives have been saying for a while this is bad, when Democrats were taking advantage of it to advance their agenda. And sometimes stretching or ignoring the law along the way.

So you'll have to forgive me for not being outraged that Trump 2.0 has found a way to harness it to his advantage. We warned you. I'm not terribly bothered about what Trump has done so far, from a legality perspective. So I'm enjoying some of the outrage some of you are experiencing being the dog that finally caught the school bus. You guys didn't need the unitary executive, because you enjoyed the sympathy of the bureaucracy to achieve your goals, even while agreeing in principle with what the unitary executive allowed. I know this from the past (bad) behavior of the Cincinnati regional IRS, for example.

I didn't vote for Trump, think him unfit to be president, because of what he might do with an imperial presidency. My prior suggestion was to reign in it, but some of you all said nah. FAFO

[I Callahan]

You people really do act like a bunch of NPC's. EVERY resident liberal on this board uses the exact same statements: "Trump doesn't care about the law."

Please try harder. Because the above is far too stupid a statement for me to have to address.

[The Margrave of Azilia]

Let me get this straight - past Presidents were lawless, but at least their subjective *feelings* about the rule of law were better than Trump's.

There's quite a cult of Presidential power which claims the Pres can do a whole lot of stuff which on the surface appears illegal: Like letting illegal immigrants stay in the country (DACA) or exempting Presidentially-authorized torture from the anti-torture statutes (I don't think that has a clever acronym).

If Trump avails himself of this pre-existing cult of the President - and I guess we'll see how far he goes - he's going to have to do quite a lot before it becomes OMG UNPRECEDENTED!

[SRG2]

Well, until Trump v USA it was generally thought that a president could be criminally prosecuted regardless of "core function". Other presidents may well have wished they could be lawless. Only one president has had the blessing of the SC to be so.

[The Margrave of Azilia]

But when push came to shove, Ford pardoned all of Nixon's Presidential crimes, known and unknown.

My high-school teacher was still steamed about it years later, saying that it conveyed a clear message that the U. S. had a two-tier justice system.

But other than Nixon and Trump, no President has *ever* committed crimes worthy of prosecution.

We know this because none of them were ever prosecuted.

/sarc

[Bob from Ohio]

"Only one president has had the blessing of the SC to be so."

Two, Biden and Trump

[SRG2]

Yes, my mistake.

[Michael Ejercito]

And we have such a history and tradition of prosecuting presidents for exercising core official functions, right?

[Katall]

A marker. The president just issued an executive order invalidating a regulation without following the requirements of the APA, citing his Article II authority.

[Jerry B.]

“What happens when a President doesn't care whether his actions comply with the law?”

He tries to unilaterally write off billions in student loans?

[Currentsitguy]

Or freeze evictions and foreclosures?

[M L]

Tells everyone they have to get a clot shot to keep their job?

[Sarcastr0]

-Posts Probisec's twitter
-Pro-Confederacy
-Thinks birthright citizenship isn't in the 14A
-clot shot

You are an educated man.
It's amazing to watch you just get dumber and dumber.

[Dan Schiavetta]

It's odd, in general, to see formerly thoughtful commenters go over the deep end here into mindless pro-Trump snarking. I can't think of a single conservative commenter who has resisted the temptation.

[Sarcastr0]

DMN is pretty conservative, he just is antiauthoritarian first. He's gone after Biden for plenty of stuff.

Noscitur and Absaroka say stuff I disagree with all the time. And at least Noscitur says he prefers Trump to Biden.
But I wouldn't say they're mindless or off the deep end.

It's fun when Riva goes after them.

[David Nieporent]

DMN is pretty conservative,

Dude. Libertarian. Actual libertarian, not Brett's indistinguishable-from-MAGA-but-sorrowful-about-it-but-trust-me-I-was-a-libertarian-50-years-ago libertarian.

[MaddogEngineer]

Liberaltarian you mean.

Because I'm a non-MAGA libertarian conservative (AKA NOT religious right sympathetic, who thinks abortion and gay marriage should be legal but are not constitutional rights for example) and I detect almost no libertarianism from you. Because if you were an actual libertarian, you would have be advocating, regardless of who is in the White House, for less government intrusion into the economy and society.

Nope, not seeing it.

[David Nieporent]

Then you're not looking.

[David Nieporent]

Pick a policy, and I've advocated for the libertarian side: property rights, regulation, immigration, victimless 'crimes', gun rights, the first amendment, the rest of the BOR, school choice, free trade…

[I Callahan]

You must have an entirely different definition of libertarian than other libertarians. I have a hard time telling you from your run of the mill sociology professor at an Ivy league school, most days.

[I Callahan]

Boy, is THAT the pot calling the kettle black.

Before Trump, you could have a reasoned argument with someone on the left on this board. Now? The left are COMPLETELY unhinged concerning anything Trump related.

Yes, Dan. Even you.

[I Callahan]

He's still right. Your point?

[Armchair]

Despite David's "the sky is falling" routine, the truth is this...

The law that Trump is "breaking" is very likely unconstitutional to start with. And Trump breaking it is keeping up with the Constitution.

Here's how it works. Under Article II of the US Constitution, the US President has broad authority to fire people in the executive branch. There have been a number of Supreme Court decisions through the decades that have broadly supported this. Many others have linked to them. (There have been exceptions, but they are notable for being exceptions).

This is no different. The IGs at hand are executive branch employees, and the President has the authority to fire them. A "waiting period" or "notification period" infringes on that authority and is unconstitutional. Whether it be 30 days or 60 days or 360 days. If a Republican Congress passed a law that required a 360 day waiting period for an Attorney General to be fired, any following newly appointed Democratic President would ignore that law as unconstitutional and fire the Republican AG without question. And David here would fully support that decision by the Democratic President.

This is no different. The law is unconstitutional.

[Jason Cavanaugh]

Actually chief, under Article II of the US Constitution, the President has precisely the Powers granted to them by Article II.

They are conveniently listed in Section 2.

[I Callahan]

Yup, and I've read them. I can't even find the number "30", or the text "thirty", anywhere in Article II.

So do you have a point to make?

[Dan Schiavetta]

I'm sure Trump carefully considered this position before acting. /s

[I Callahan]

See? Right there! This is what I was talking about.

You start with a caricature (Trump dumb orange man), and from that narrative, you actually believe Trump doesn't know what he's doing?

This is why you lost. You keep underestimating the man.

[Yogis_dad]

The executive power of the United States is vested in the President. Congressional action purporting to limit the lawful exercise of that power violates the Constitution. Is that hard to understand?

[ducksalad]

What you're doing is begging the question.

The question is what's included in "the executive power of the United States". Your claim is that the implied power to fire people - which is not explicit in the text of the Constitution - outweighs explicit statutes made by Congress. That's debatable.

It's false to say that Congress can't do anything at all with respect to employees. They certainly do stuff like set pay scales and benefits. There's also this text in Article II: "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments" which sure seems to imply Congress could have delegated the hiring, and thus firing, to someone other than the President.

A more reasonable observation would be that Congress hasn't passed a law taking IG appointments out of the president's hands, combined with a theory - also debatable - that they can't separate the hiring from the firing. That would make what Trump did legal, but only because Congress hasn't acted. But the Constitution sure seems to say Congress could have if they'd wanted to, which would flat out destroy your broad claim.

[Michael Ejercito]

If IGs exercise execuctive authority, then Congress requiring a thirty day waiting period means that IGs can, even temporarily, exercise executive authority against the will of the President.

[ducksalad]

against the will of the President.

Yeah and so what. It's not like an IG can order a nuclear attack or suspend habeas corpus. They can (gasp) issue a report.

Are you invoking the non-existent Supreme Will of the President Clause again? Or just worshipping your new god?

Try to remember way back, like 8 days ago when you were a normal person, just fine with people pushing back against a POTUS and pointing the limits of his authority.

[Michael Ejercito]

Sure.

It is just that there is no limit to the President excluding other people from exercising the executive authority of the United States of America.

[David Nieporent]

I'll repeat my question from one of the earlier threads in this discussion: are you arguing that the Pendleton Act is unconstitutional?

[Michael Ejercito]

To the extent it restrains the President from firing (i.e., withdrawing the authority to exercise executive functions) Article II employees with immediate effect, then yes.

[David Nieporent]

Well, that's consistent. It's from cloudcuckooland, but it's consistent.

[Michael Ejercito]

It is not from cloud cuckooland.

[MaddogEngineer]

It's what I thought the law actually was, so I'm guessing I'm from cuckooland too.

It's no surprise there's a partisan divide here (like I said above), because with Democrats generally having the bureaucracy on its side, they have not had to worry about such niceties. In fact the entire thing is the farm system for developing future talent. Hence any line blurring was never a problem. Same team!

I thought the entire point of the civil service structure was to protect jobs that didn't have policy discretion. The only protection long term for non-partisan positions is for those who hold the position to act in a non-partisan way. The Archivist of the United States has apparently passed this test, despite partisan political pressure from several United States senators and the president of the United States. We'll see whether the Senate Parliamentarian does this year (during the reconciliation process).

We may get to revisit Morrison v Olson yet again, going around the circle a third time. Going from Scalia is a unitary executive sole dissenting loon, to Scalia was actually 100% correct in hindsight, to of course a special prosecutor can allege a sitting president committed obstruction of justice. Morrison v Olson is still good law! I'm getting dizzy.

[damikesc]

I'd easily argue yes.

Having people in the Executive Branch who serve in direct opposition to the President is utterly illogical and in clear violation of the Separation of Powers.

[I Callahan]

So you draw the line at writing reports. Anything past that is not OK? Or am I not guessing where your line is?

Hypothetical: Biden hires an IG to work in the DOJ. This IG has some VERY questionable past issues when it comes to ethics. Fast forward to 2024: Trump gets elected. He announces that in 30 days, he'll be removing this particular IG. IG with issues puts out a report that is COMPLETELY unethical, saying Trump has done some horrible things, even though he hasn't.

This is the law you want enforced? Is there some magical ranking system for government employees that they're somehow more special than private sector employees? Because in the REAL world, when they want you gone, you're gone THAT DAY. And the reason is simple: you don't want someone sabotaging something on their way out.

I honestly do believe you government types think you're on a higher moral plane than the rest of us.

[Kleppe]

"What happens when a President doesn't care whether his actions comply with the law? We are about to find out."

The Obama presidency has long since come and gone.

[Dan Schiavetta]

Another empty, juvenile "I know you are but what am I?" response.

[damikesc]

You do not seem to like when people note that Trump is not unique. Why is that?

[F.D. Wolf]

Post exhibiting the sense of perspective one expects from anti-Trump hysterics.

President Biden purported to unilaterally transfer a half-trillion dollars of student debt from the debtors to the taxpayers in the most brazen vote-buying scheme in history, but the Supreme Court blocked him. Biden also purported to unilaterally halt all eviction proceedings in the country, a scheme which was also struck down by the Supreme Court. Biden publicly stated he did not believe this latter scheme was legal, but it would buy time as it was resolved in the courts.

While I imagine those schemes met with minor disapproval from Post, what does it take to make him hysterical about "one-man rule"? Failure to give a thirty-day notice to Congress in a personnel matter. What a keen sense of perspective.

As to the legal merits, I believe the majority feels that Trump is in the right about the restriction being an unconstitutional infringement on his Article II powers under Myers v. United States, etc. As a practical matter, though I suspect Post, unlike Trump, has never had to make a payroll, it is generally a bad idea to tell someone, "You're fired... but hang around another 30 days." It would seem doubly unwise in the case of a government official with executive power.

[Dan Schiavetta]

There are people in the Executive Branch the President can't just sack. This is not just another casino for Trump to (mis)manage.

[Michael Ejercito]

Actually, he can sack anyone in that branch whom he feels like sacking.

[F.D. Wolf]

The Court has annunciated very limited exceptions to the President's ability to remove Executive branch officials in cases like Humphrey's Executor and Morrison, and Cabinet department IGs don't conceivably fall within any of them.

The Constitution says, "The executive Power shall be vested in a President of the United States of America," not "in a President and a few other guys". Anyone who wields executive power is subordinate to, answerable to, and removable by the President. Maybe that wasn't the best way to structure the executive branch, but that is the way the Drafters chose to do it.

[ducksalad]

The Constitution says, "The executive Power shall be vested in a President of the United States of America," not "in a President and a few other guys". Anyone who wields executive power is subordinate to, answerable to, and removable by the President.

So here's a theory totally opposite to yours: The executive power is vested in the president but it isn't defined by the president. It's for sure not defined by F.D.Wolf.

The constitution enumerates the executive powers:
1. Commander in chief of military
2. He can ask for opinions from heads of departments*
3. Reprieves and pardons
4. Receive ambassadors
5. Sign or not sign bills.
6. Hire some subordinates, but only with the approval of Congress for the position to even exist, and only with the approval of the Senate for the actual person hired.
7. Take care that laws passed by Congress are executed.

There is no enumerated power to fire people. Any implied power to fire people is derived from 6 and 7, both of which need congressional approval. If Congress can do something, they can attach conditions to it.

------
*Isn't it a bit odd that the authors felt it necessary to authorize him to ask for opinions, when according to your theory they intended him to be a elected czar during his term of office?

[David Nieporent]

6. Hire some subordinates, but only with the approval of Congress for the position to even exist, and only with the approval of the Senate for the actual person hired.

Also, note that the constitution expressly allows Congress to vest the power to make appointments of inferior officers in the heads of departments — that is, not in the hands of the president. That proviso is not consistent with the notion that the framers intended that all executive power be solely in the president, who's intended to be God Emperor not subject to any congressional control or limits.

[Michael Ejercito]

Because the authors eanted Congress to enable the Presidemt to delegate his appointment power.

[David Nieporent]

No. You misread the provision. It doesn't "enable the President" to delegate anything. Congress can bypass the president, and vest the power elsewhere, regardless of what the president wants.

[David Nieporent]

The Court has annunciated very limited exceptions to the President's ability to remove Executive branch officials in cases like Humphrey's Executor and Morrison, and Cabinet department IGs don't conceivably fall within any of them.

Not to go all Blackman/Tillman, but the court was talking about officers there, not all federal employees.

[Bored Lawyer]

The IGs at issue have sufficient authority to fit within that. Whether Trump can fire the janitor at a federal building is another question. Which he so far has given no indication that he intends to do so.

[David Nieporent]

Yes, I am not saying that an IG is a mere employee; after all, it's a senate-confirmed position. But some people are making the larger claim in this thread that the president can fire janitors.

[Michael Ejercito]

He can.

[I Callahan]

Wrong. And it's also obvious YOU have never had to make a payroll or deal with human resources issues.

If a boss can't do that, he can't manage his company. Government employees shouldn't be treated any differently. I'm QUITE sure that the original Article 2 laws as well as Myers had all of that in mind when these decisions were made.

[Ghost of Patrick Henry]

Mr. Post, did you write a screed like this over DACA?
Plus, what difference does 30 days make? Can Congress make it 4 years of advanced notice? Maybe do that for cabinet officials? What about White House staff? Send us your list of terminations and 4 years later you can fire them. To quote our VP, "do you even hear yourself?"

[Sarcastr0]

DACA was scaled down from the DREAM Act to be within the statutory discretion allowed under the ANA.

Due to the scaling down, it's hard to argue Obama just didn't care about the law.

Aren't you a lawyer? What's with the irrelevant hypotheticals?

[Michael Ejercito]

He is challenging the idea that Congress can restrain the President from prohibiting other persons from exercising executive power.

[damikesc]

"DACA was scaled down from the DREAM Act to be within the statutory discretion allowed under the ANA.

Due to the scaling down, it's hard to argue Obama just didn't care about the law."

"See, he went from MASSIVELY ignoring the law to only SLIGHTLY ignoring the law. That makes it justifiable." - Sarc

[Ghost of Patrick Henry]

What is the limiting principle here? 30 days? Can't be that, because that is arbitrary.
Reasons to Congress BEFORE taking action? Can't be that, because Presidents don't have to explain why they want to do something anymore than Supreme Court Justices do. And, yes, I am a lawyer. You?

[David Nieporent]

Can't be that, because Presidents don't have to explain why they want to do something anymore than Supreme Court Justices do.

They do if a law says they do.

[MaddogEngineer]

Except for the whole work authorization/permits part. No discretion.

[The Folding Attorney]

The emperor has no clothes.

[Careless]

So Trump has been president 4 years. How many final decisions has he simply ignored for Post to write a post like this? Surely, they must be numerous for this kind of certainty.

For all his flaws, I'm not actually aware of "ignoring federal courts" being on the list

[Sarcastr0]

You misunderstand the thesis. It's not that he ignores the courts, it's that he goes in doing whatever he wants and daring people to stop them if they don't like it.

Doesn't even bother to understand what the law says.

That's new.

[Careless]

Did you not read to the end? Because it ends with Trump telling the courts to go fuck themselves

[Sarcastr0]

I’m not sure that happens next. You didn’t specify that was your issue with the OP.

I am sure if it does happen you will defend it.

[Randal]

I am sure if it does happen you will defend it.

Which we know since it's what happened with election denialism in 2020.

[I Callahan]

How is questioning the results of an election an example of you eventually going in and breaking every law you can?

Is there a liberal on this board that understands logic, or no?

[Randal]

Because after the courts told him there was no election fraud, Trump went in and broke every law he could.

I thought that was obvious.

[damikesc]

Lawyers Obama and Biden did the same.

You were OK with that.

Why?

[JasonT20]

So you will be okay when the next Democrat in the White House does it? Or maybe, just maybe, Trump will do something that you don't agree with that is clearly a violation of law, and then when no one stops him...What then?

[With Trump in, "now Lord you can let your servant go in peace"]

Oh, these silly "post"s that wink at Biden and pretend to gasp at Trump. He's got 4 years of Biden doining what he supposedly fears but it takes one week of Trump to awaken a response.

Biden his whole 50 years did exactly this. He would push for something irrespective of any constitutional basis and wait to see if the Court accepted it. If not , he kept at it.

[Mark In Florida]

Exactly. Tired of these TDS posts.

[David Nieporent]

Setting aside the confusion over which side is deranged about Trump, Blackman writes 27 posts about Justice Jackson's sartorial choices and 18 more about reasons why Justice Barrett might have recused herself, and that didn't bother you, but you're "tired of" a guy who posts once or twice a year?

[MaddogEngineer]

He's also deranged about the chief justice. The guy who wrote Citizens United and declared that the president has immunity from core executive functions. Both of which some here claimed would lead to the end of democracy.

If we're going to talk about who is deranged.

(Blackman is hack, similar to you except you are less prolific in your posting.)

[Lee Moore]

You need to understand that Roberts writes these decisions because he has dibs. If he didn't claim the pen, it would fall into the hands of Thomas or Alito.

He is writing so as to water down the judgement to the narrowest possible grounds.

[David Post]

See my comment below. "He started it!! Nyah nyah nyah nyah nyah." Not helpful, I'm sorry to say.

[Mark In Florida]

Didn't we find out the answer to this question during the Obama and Biden administrations?

[Real American]

The firings aren't illegal, they're just undocumented.

[David Nieporent]

Hey, that was almost funny. Who said MAGA doesn't have a sense of humor?

[JasonT20]

I haven't seen this brought up yet, maybe one of the legal minds around here can tell me that I'm not saying anything new, as I doubt that I figured out something they hadn't. But it just occurred me that a completely valid purpose for Congress to want an explanation when a previously Senate-confirmed official is fired is so that they can better evaluate the nominee to replace them.

Especially with a 'watchdog' position like an IG, that is a very valuable piece of information needed for the exercise of Congress's power of oversight and most specifically the Senate's power to advise and consent to nominees.

[Lee Moore]

Sadly I only have a tired old businessman's mind, not a legal one (though I confess that I am quite good at circumlocution and deflection when the need arises.)

All the same I'll have a try.

1. asking for an explanation as to why the previous guy was fired may be perfectly logical, in theory, as a help in evaluating the next guy at his confirmation hearings, or as general background to inform any future confirmation (eg I fired him because he couldn't read. I realise that I when I nominated him I failed to appreciate how much of a buden that would be, but I've now realised that being able to read is really useful in that job.)

2. ...but it doesn't work as a reason for Congress wanting to know the reason before the firing. Before the next confimation hearings would work just as well.

3. Also it doesn't work as a reason for Congress to need to know. Just for the Senate.

4. But the Senate can always ask the President that question when he sends his new nominee along, with the threat that if he doesn't tell them, they're going to turn the new guy down. This is partiularly flexible because they can ask some of the time and not other times.

5. And it seems implausible that the Senate can't guess a thousand reaons to doubt the quaifications of future nominees, without chapter and verse from the President. That's what a confrmation hearing is, after all.

6. In short your amazingy good reason seems to me to be an amazingly obvious pretext.

[I Callahan]

The butthurt is quite evident in this screed.

No, I just think it's you attorneys don't get to stretch the definition of the constitution to mean what you want it to mean. And now someone is going to challenge the questionable ways that's happened over the decades.

Its a long time coming.

[thesafesurfer]

When the first sentence of an article contains a false premise it does not bode well for the author's argument.

[David Post]

Thesafesurfer: "When the first sentence of an article contains a false premise it does not bode well for the author's argument."
Pray tell, where is the false premise? Here's my first sentence:
"So President Trump has fired a whole host of federal agency Inspectors General without providing either the 30-day notification to Congress or the "substantive rationale, including detailed and case-specific reasons" why an Inspector General was removed, both of which are, unambiguously, required by law."
False premise? Where?

[David Post]

What continues to surprise me as I skim through these comments is this: How frequently the "He did it first!!" or "He started it!!" argument pops up from Trump supporters. I thought we all got this out of our systems when we were 11 years old. Biden did this too!! Obama did this too!! That doesn't help me distinguish right from wrong, just as my mother didn't care that my sister hit me before I hit her. "Don't hit your sister!!" was the message irrespective of who started it. The whole thing seems pretty childish to me, I must say.

[David Post]

And one other thing that bothers me. I would bet that 20% of the comments in the preceding discussion touched on the question of whether I, and/or others who, like me, think that Trump is a genuine threat to American democracy, are "hypocrites." "Biden and Obama did exactly the same thing, and you didn't way a word about it!! It's Trump Derangement Syndrome!!"
Whether or not I am a hypocrite is uninteresting and unimportant. You want to think I'm a hypocrite - fine. Be my guest. I'm not going to argue with you about that, because that is silly. The question on the table is whether we are going to persist in having the rule of law in this country or not. That's what matters. Not whether I'm a hypocrite or you're a hypocrite or anyone is a hypocrite. Can we stop talking about that, please, and focus on what matters?