Absolute Presidential Power that Is Not (Directly) Deadly

Over the last few years, many non-MAGA news outlets finally caught up with the reality that Donald Trump represents an existential threat to the rule of law.  There is much to be said about every aspect of that threat, and of course news outlets are focused on the most lurid -- but to be clear, absolutely real -- possibilities.  These include mass round-ups of millions of immigrants (and people mistaken for immigrants) into concentration camps, prosecuting Trump's political enemies, and using the US military to attack and most likely kill protesters in the streets.

Again, those threats are real.  How do we know?  There is no need to connect any dots or to translate something that Trump has said into non-euphemistic form, because these are things that Trump and his backers have openly discussed.  It was not always thus.  Back in 2009, Republicans freaked out about Michelle Obama's efforts to get people to exercise more and to eat better, with the more extreme versions of the freakout including claims that she was planning to send people to concentration camps.  Indeed, conspiracy theories about concentration camps were a big thing on the right in the Obama years.  And who could forget the "death panels" lie that Republicans invented in response to the Affordable Care Act?

None of those things even qualified as connecting the dots, relying instead on weird leaps of illogic that were breathtaking in their ... shall we say ... inventiveness.  In any event, we do not even need to shorthand Trumpists' plans with a "this is what they really mean" gloss, because they are saying exactly what they mean.  That their plans include literal concentration camps is a testament to their hypocrisy (and much more), but they are so open about their intentions that it is now beyond trite to say that Trump or one of his acolytes is "saying the quiet part out loud."  There is no longer any quiet part.

As I noted above, it makes sense that the most fascistic Trumpian plans grab the headlines.  Even so, there are other parts of the TrumpWorld vision that are not obviously life-threatening, at least as a first-order matter, but that are absolutely terrifying in what they could do to the country and the world -- indirectly killing many more people than even a Gilead-like crackdown on street protests could ever kill directly.  And as it happens, the Trumpists' plans with the most devastating potential have to do with my two areas of scholarly inquiry: economics and tax law.  How bad could things become, and why are these famously unsexy policy areas so important?

The short answer to the latter question is that "boring" policy areas present the greatest opportunity for committed ideologues to do serious damage.  In my day-to-day life interactions with people (in shops and doctors' offices, for example), the small talk sometimes includes people asking me what I do.  My usual answer is evasive: "I teach," or at most, "I'm a professor."  When people ask me what I teach, I still try to be minimalist and say simply "law."  But when someone asks a more specific question, I know that the conversation will end if I say "economics" or "tax law," because no one ever feels like there is a followup question.  Usually, they simply change the subject, sometimes after saying something like, "Oh, wow, I don't know anything about that," or "I guess someone has to do that stuff."

The point is that whereas people will engage with the idea that they might be arrested someday for having been a registered Democrat, the stuff that they cannot get their heads around can be damaging even as it bores them to tears.  That makes it all the more important to pay attention to what Trump and his advisors are planning to do in the areas of economic policy, including taxes and government spending.

Three weeks ago, I wrote a column here on Dorf on Law describing Trump's desire to take direct control of the Federal Reserve (the Fed).  As the US's central bank, the Fed controls monetary policy, which includes setting interest rates, regulating banks and other financial institutions, buying and selling Treasury debt, and so on.   Monetary policy is the "other" side of economic policy from fiscal policy, which concerns government spending, taxation, and borrowing.  In that column, I conceded (as above) that monetary policy is boring, and I then explained that Trump could do major damage to the world by messing with monetary policy.

In a followup column last week, I responded to a New York Times article that had characterized a Trumpian takeover of the Fed as "legally and politically tricky."  I first noted that it would be a simple matter to change the law to give Trump complete power over the Fed.  The Fed's relative political insulation and policy independence were created by statute, and they can be eliminated by repealing or amending statutes as needed.  I was less specific about whether it would be politically tricky, but it is worth taking a moment to discuss what could go wrong.

The basic idea is that Trump would have an incentive either to leave the Fed's legal status alone or, if he were to give himself dictatorial powers over monetary policy, to exercise those powers carefully.  The claim in The Times was that such a sea change "could roil the very stock markets that Mr. Trump has frequently used as a yardstick for his success."  I pointed out that even if Trump continued to care about political popularity, he would still arrogate to himself the power to make big changes, which at best means that political trickiness would give him a reason to use his absolute powers with an eye toward the markets.

As far as it goes, that is all still true.  The further point, however, is that even people who are level-headed and acting in good faith can make bad decisions in a moment of overreaction to unforeseen events.  And Trump is anything but a level-headed person acting in good faith.  He could decide on a moment's notice that he wants interest rates to go down, supposedly to pump up the markets, and even if his advisors were to tell him that doing so would have the opposite effect, he could simply say (as he so often does) that he knows better than anyone.  One of the values of a relatively bureaucratic decision-making process is that it becomes nearly impossible to make rash decisions.  Say goodbye to all that.

This is all the more important in a world where Trump's people are planning to eliminate civil service protections for all federal workers.  Get rid of the bureaucrats -- or make it clear to them that they can be tossed overboard at a moment's notice -- and erratic decisions become more possible.

All of which brings me back to monetary policy's fraternal twin, fiscal policy.  In a Washington Post article this past Saturday, we learned that one of Trump's key advisors (who served as Trump's budget director) plans to get rid of the Impoundment Control Act of 1974.  And that would be bad.  Seriously.

Again, this is not going to lead any of the nightly news feeds.  It is in some sense amazing that The Post bothered to run a story about it at all.  If people become easily bored and confused upon hearing words like tax and budget, what in the world will they think about controlling impoundments -- especially because no one even knows what an impoundment is?

And this is exactly the point, because that 1974 law is an essential element of the rule of law.  Fiscal policy can be chaotic, with the constant threat of full and partial shutdowns, expiring provisions creating "fiscal cliffs," and so on.  Giving impoundment power to the President would take it to an entirely new level of unpredictable madness.

OK, but what is impoundment?  Simply put, a President who does not want to follow the appropriations laws by spending exactly what Congress ordered him to spend (in full and on time) impounds funds when he says, "Nuh uh, not gonna do it."  Unsurprisingly, this fits right into the ideas of the unitary executive, where all power is vested in the office of the President.  Even less surprisingly, impoundment was one of the abuses of power from the Nixon era, and the 1974 act was passed specifically in response to that imperial presidency.  Is it any wonder that the Trumpists' want to bring it back?

And to be clear, there was a lower court opinion declaring that impoundment was an unconstitutional violation of the separation of powers.  The 1974 act made it unnecessary for the Supreme Court to affirm that ruling, but there is little doubt that that Court would have done so.  The current Court, by contrast, would almost surely rubber-stamp Trump's power grab.

In any event, all of the discussion so far had been merely procedural.  Congress has the power to determine spending levels, and the President has the responsibility to spend the funds, but what if the President simply cuts Congress out of the equation?  What is the substantive damage?

Professor Dorf and I have published hundreds of thousands of words since 2011 regarding the debt ceiling and what we call the trilemma, which is the situation in which a President could not -- as a matter of arithmetic -- simultaneously obey the appropriations laws, the tax laws, and the debt limit statute.  The key to the first of those laws is the statutory/constitutional prohibition on impoundment.  That is, people who claim that a President faced with a binding debt limit could "just cut spending" are wrong, because the money has already been appropriated (and is thus legally owed to intended recipients).  All of the President's options are illegal, not just two of the three.

This in turn means that a President who chose to refuse to pay legally enforceable bills would violate spending statutes and the Constitution.  But again, so what?  What is the real damage?  This is where the Trumpists' plans would undermine the rule of law and do real damage to the economy.  One of the points that shows up again and again in the Buchanan-Dorf oeuvre is that giving the President the ability to impound funds makes the budgeting process a sham.  If Congress knows that the President can cancel any of the spending provisions that Congress might pass, then it would become clear that Congress could simply pass a Christmas-tree bill every time.  What Congress said would not ultimately matter.

Getting rid of the Impoundment Control Act, however, would be even worse.  It would no longer be a matter of using the debt ceiling to put the President in a trap.  The one small saving grace of a one-party autocracy under Trump is that there would be no more debt ceiling crises.  Those, after all, are reserved for times when a Democrat is in the White House, but Republicans are currently doing everything they can to stop that from ever happening again.

Instead, impoundment authority would simply put all spending decisions in the White House.  Trump could refuse to spend anything that he did not like -- the entire budgets of the EPA and the IRS, or maybe cancel all federal payments that would help New York or any other blue state? -- and move the funding to whatever he chose to do instead.  It would be, in other words, legalistic lawlessness.

Trump has endorsed all of this, of course, justifying it by saying (according to The Post's reporting) that "I will use the president’s long-recognized Impoundment Power to squeeze the bloated federal bureaucracy for massive savings.  This will be in the form of tax reductions for you. This will help quickly to stop inflation and slash the deficit."  That is legal, budgetary, and economic gibberish, and it merely resurrects the "waste, fraud, and abuse" trope for justifying a presidential power grab.

Would any Republicans object?  The Post's reporter did find a couple of Republicans in Congress who expressed doubts, one of whom said that he "hoped" that Trump would work with Congress, with the other saying that "I am not interested in giving them more power."  On the latter, however, note that the "them" to which that Republican referred is the Biden Administration, not Trump.

Although Mitt Romney will not be in the Senate when all of this might happen, it is notable that even the "responsible" right-winger is terribly confused, reportedly saying that he would have to see how Trump used impoundment in practice before deciding whether that would be a good thing, adding: "There are places I’m sure where Congress suggests that money ought to be spent and a president could determine that’s wasteful and inefficient and it would be appropriate not to spend it all."

And there it is.  Combine legally obscure power grabs with the most tired conventional wisdom about whether money "ought to be spent" -- and add in the constitutionally illiterate notion that spending laws are where Congress merely "suggests" what the President should do -- and we will not even see a minor fight from Republicans to this arbitrary seizure of the power of the purse.  And if Trump can start to cancel things that help the millions of people who voted against him, there is no reason to imagine that he will hesitate for even a moment.

To repeat, they are saying this out loud.  By invoking the much-hated debt and bureaucracy bogeymen, they think it will fly politically.  And because it is boring, they know that almost no one will pay attention.