The Volokh Conspiracy

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On Schadenfreude

It is time, I suggest, to give what-about-ism a well-deserved burial.

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Co-blogger Josh Blackman here acknowledges that he hasn't been following the legal developments in the TikTok case too closely, and that his reaction to the Attorney General's claim that the President had "nullified the legal effects of a statute passed by large bipartisan majorities in 2024" is "schaudenfreude."

For more than a decade, I've written about how the Obama Administration nullified the Affordable Care Act's mandates, as well as immigration law through policies like DAPA and DACA. I'm sure smart lawyers can draw distinctions between the Obama orders and Trump's orders. But I'm not sure those distinctions matter. President Obama found ways to disregard laws he didn't like through hyper-creative means, but since those laws accomplished "positive" goals, everyone looked the other way.

I haven't followed the developments too closely, either - though close enough to recognize that Trump is - again - defying the explicit, express command of the law.[1]

[1] The statute establishing the TikTok ban authorized the president to grant a "1-time extension of not more than 90 days" with respect to the date on which this subsection would otherwise apply" - that is, up until April 20 - but only if the president certifies to Congress concrete progress toward divestiture of TikTok—including "binding legal agreements to enable execution" of divestiture "in place." The President recently announced his third "extension" of his non-enforcement order, this time up until September 17, 2025.

Personally, I'm super-excited to see which of our President's billionaire buddies will get handed this multi-billion dollar gift - operational control over TikTok, at some huge discount from the market price, all tidily negotiated with the Chinese by you-know-who.  [The smart money is, apparently, on Larry Ellison of Oracle]. What's he going to get in return?! Can't wait to see. And I'm hopeful that this will help people see this grift for what it is.[*2]

[*2]On a number of occasions, Trump has indicated that there is a connection between the tariff negotiations and getting the Chinese to approve a TikTok sale. [See e.g. here] Something like: OK, I'll lower the tariff on toys from 50% to 40%, but only if you get ByteDance to sell TikTok to my pal [insert favored billionaire here] at 25% off.

I'm actually beginning to think that this helps explain much of Trump's erratic (to put it mildly) tariff policy, the whole point of which, it is now becoming pretty clear, was to get leaders from every country in the world to come to the President and beg for his blessing (and maybe throw in a hotel/golf club building permit or two).  Thank you, Godfather!

But all that is neither here nor there. What I really want to talk about is schadenfreude and what-about-ism.

Josh is a strong what-about-ist. "What about Obama's suspension of the ACA mandates? What about Biden's student loan forgiveness orders? Etc. Where were you then? Why weren't you concerned about executive encroachment when the president had a 'positive' goal, but you're so concerned now?"

He writes "I'm sure smart lawyers can draw distinctions between the Obama orders and Trump's orders. But I'm not sure those distinctions matter."

Here is a distinction that matters, and matters a great deal, between Trump's orders and Obama's (and Biden's, and GW Bush's, and Clinton's, and Eisenhower's, and Truman's …): Trump, unlike all of those other presidents, has clearly expressed, in word and deed, his disregard of any limits on his powers to do pretty much anything he wants to do. Tariffs, funding freezes, bombing Iran, deploying the National Guard in L.A., dismantling US AID and the Nat'l Science Foundation, etc.

Again. And again.

And again. And again.

Maybe you disagree with that. I gather some people do, though I find it difficult to imagine how someone could look at this Administration's record to date and think: this is a President who has appropriate respect for the constraints on his powers that the Constitution lodged in the other branches of the federal government. But maybe you do.

But to me - and, I would suggest, anyone looking objectively and rationally at Trump's record in office so far - it gives each individual act of malfeasance - such as "nullifying" a federal statute - a much, much more sinister resonance.

So no, I didn't write anything about executive overreach when Obama suspended the Affordable Care Act's mandates, or when Biden implemented his loan forgiveness program. Why not? Because I doubted that I had anything much to add to a necessarily rather technical argument about what the president was doing and what the statute required him to do, and because those actions did not seem to me to be part of some larger Obama or Biden project to dismantle the law-making institutions of this country and to arrogate all power to the president.