Washington Merry-Go-Round

IMMEDIATE RELEASE 8 February 2025
WASHINGTON MERRY-GO-ROUND
Today’s Events in Historical Perspective
America’s Longest-Running Column Founded 1932
Yes, he can
By Douglas Cohn and Eleanor Clift         
 
WASHINGTON – There are major fault lines in the Constitution and our government based upon it, and thanks to Donald Trump those fault lines are being revealed at a breakneck pace.
Pushing the boundaries of executive power is not new. It is a time-honored tradition for presidents to test the limits of the executive branch. What is different is the sweep and velocity of President Trump’s executive orders issued without regard for constitutional or traditional constraints.
Just as he did in his first term as president, Trump’s wild behavior is exposing fault lines such as his attempt to overturn the 2020 election. Congress responded with the Electoral Count Act. But Trump was just learning the game.
Now we are watching him reach for more executive power as a compliant Republican-controlled Congress ignores its co-equal standing with the executive and judicial branches of government.
Government agencies are reeling as billionaire Elon Musk, empowered by Trump as a “special government employee,” enters federal spaces with a cadre of young accomplices to question pay procedures and order civil servants to stand down.
People are beginning to wake up asking: Can he do that? Is it legal for a president to defy laws and the Constitution and send an unelected person to run rampant through our government?
              Yes, he can. President Barack Obama campaigned on a theme of, “Yes, we can,” an inclusive theme Trump has flipped into an autocratic, ego-centric “Yes, I can.”
As the sole head of the executive branch, a president may act with impunity unless a law passed by Congress and signed by a president, or a law adjudicated by the Supreme Court, says he cannot. Maybe.
For example, a career public servant at the Treasury Department blocked Musk’s access to payment records for government programs such as Medicare and Medicaid, then made them “Read only.” Can he do that? No, and the official resigned in protest after the contretemps. The Treasury Department is an arm of the executive branch, so the president or the minions he designates can read and copy anything he wants. The same holds true for the Department of Defense, the CIA, the FBI, and all the other executive branch organizations.
              Only a law on the books can theoretically prevent this but therein lies the fault line. The executive branch enforces the laws, and precedence was established in 1830 with passage of the infamous Indian Removal Act, an act Rep. Davy Crockett, D-Tenn., described as “a wicked unjust measure” that launched the Trail of Tears. Chief Justice John Marshall ruled it unconstitutional, a ruling President Andrew Jackson ignored, explaining in 1832, “The decision of the Supreme Court has fell stillborn.”
Trump makes no secret of his belief that whatever cases reach the Supreme Court, his argument to expand executive power will get a sympathetic hearing from the Court’s 6 to 3 super conservative majority. He may be wrong (Chief Justice John Roberts and Associate Justice Amy Coney Barrett appear to be carving out a middle ground) in which event, following Jackson’s lead, Trump may simply refuse to enforce an adverse ruling, stating, “Yes. I can.”
              And so, Trump continues to run amuck.
Musk is his perfect attack dog, shamelessly boasting about spending the weekend “feeding USAID into the woodchipper.” As part of the Foreign Assistance Act passed by Congress and signed by President Kennedy in 1961 the U.S. Agency for International Development is an independent agency President George W. Bush employed to counter the HIV epidemic in Africa and saved 25 million lives.
However, the agency also has problems, but it cannot legally be eliminated by a president.
              But what a president cannot eliminate a president can undermine. Trump and Musk have put around 10,000 USAID staff on leave, and this can come afoul of the civil service reforms enacted in the late 1800s and thereafter. As a result, a federal judge has put a temporary hold on this. There is even pushback from a Trump ally. Sen. Jerry Moran, R-Kans., is one of the rare Republicans to object to the brutish treatment of an agency with a storied history. As AIDs workers are told to go home, agriculture exports from Kansas are left on the dock.
              Likewise, Trump is going after NATO, the organization created by treaty that has kept the longest peace in European history. He cannot revoke the treaty. Instead, he has ordered a 20 percent reduction of U.S. forces stationed in Europe.
Next up? The Trump-Musk team has ordered the FBI to provide the names of agents who investigated the January 6, 2020, assault on the Capitol. And they have ordered the CIA to send a list of all new hires over the last two years to the White House, reportedly to comply with the order downsizing its work force. According to The New York Times, the list includes first names and first initial of the last name. The Times notes that among them is a large crop of young China specialists, whose identity must be closely guarded from China hackers.
Can Trump do all this and much, much more? With a toothless Supreme Court, a compliant Congress, and a public concerned only with self-serving issues, yes, he can.
 
See Eleanor Clift’s book Selecting a President, and Douglas Cohn’s latest books The President’s First Year: The Only School for Presidents Is the Presidency and World War 4: Nine Scenarios (endorsed by seven flag officers).
          Twitter:  @douglas_cohn
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END WASHINGTON MERRY-GO-ROUND