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executive power
Venezuela, Executive Defiance, and the Last Chance to Restore Congressional War Powers
Members of the House and Senate must act to ensure the US does not go to war without the people's consent.
Dec 17, 2025
This is not a call for spectacle. It is not a public declaration. It is a sober appeal, written for those among you who still recognize the fragile architecture of our Republic and the danger that comes when its foundation is ignored. It is written for those who remember why Congress—not the Executive—is entrusted with the solemn power to send this nation to war.
Today, the United States Navy maintains a forward-deployed combat fleet off the coast of Venezuela. At least 12 warships now patrol waters once governed by diplomacy, now steered by executive will alone. And still, Congress has issued no declaration of war. No authorization of force. No public debate. No roll-call vote. The War Powers Resolution lies dormant—its reporting mandates ignored, its withdrawal timeline untriggered, its constraints publicly mocked.
This is no abstract concern. The precedent is Syria.
For over a decade, US troops have operated in Syria under the shifting pretexts of counterterrorism, chemical weapons enforcement, and later, oil field protection. All of it unfolded without a single Syria-specific authorization from Congress. The executive claimed continuity under the 2001 Authorization for the Use of Military Force, invoked Article II powers, and redefined “hostilities” so narrowly that armed conflict somehow ceased to qualify as war. Congress, through passivity or political caution, allowed this to become precedent. That precedent now extends to the Caribbean.
This is not just about Venezuela, or Syria, or this presidency. It is about whether Congress still holds the power the Constitution gave it—or whether that power has already been quietly surrendered.
The danger off Venezuela’s coast is not theoretical. Intelligence assessments confirm that anti-ship missile systems have already been deployed by foreign actors in response to US naval activity. We are, at this moment, one miscalculation away from open conflict. And we are there without legal cover, without strategic necessity, and, most concerningly, without your consent.
Some of you may be asking—why now? Why Venezuela? The official answer is narcotics. But the record speaks otherwise. The 2025 National Drug Threat Assessment does not list Venezuela as a major conduit for fentanyl or cocaine. Expert testimony, including from senior Drug Enforcement Administration officials, confirms that the overwhelming flow of narcotics originates elsewhere—Mexico, Colombia. The rationale, in short, does not withstand scrutiny.
So what then is the real purpose of this deployment?
The answer many of you already suspect—but may hesitate to say aloud—is political theater. A projection of military might as domestic performance. A maneuver meant not to protect the homeland, but to flex power unbound by law. This is war making as messaging, and that messaging is not to foreign governments—it is to political opponents here at home. The weaponization of the military for electoral ends is no longer a distant fear. It is present, palpable, and accelerating.
This moment bears a dangerous resemblance to the final phases of past democratic declines elsewhere—when legislatures abdicated their constitutional duties in the face of strongman rule, often for fear of public reprisal, partisan division, or political cost. But no cost compares to the one history will impose if this is allowed to proceed unchecked.
The truth is stark. The president has refused to honor a submission of a War Powers report as required by §4(a)(1). He has dismissed the 60-day withdrawal trigger under §5(b), where such a dismissal is deemed unconstitutional by the Justice Department’s Office of Legal Counsel since 1980. He has redefined “hostilities” to exclude the use of lethal force against targets unable to return fire—effectively nullifying the Resolution itself. He has removed independent legal advisers within the military who might challenge unconstitutional orders. He has promoted false pretexts for war. And he has called for the execution of members of Congress who questioned these actions.
These are not simply impeachable acts—they are an attempt to reorder the structure of government itself.
To those among you who still believe in deliberation, in institutional balance, in constitutional restraint—this is your moment. Congress must compel the executive to honor any submitted legal reports, as required. Failing that, it must move to demand withdrawal of US forces from Venezuelan waters absent a new authorization. This will require bipartisan courage, legislative resolve, and leadership that can transcend factionalism. But it can be done—quietly if necessary, firmly if unavoidable.
And if the president continues to deploy the military in open defiance of congressional authority, uses force under fabricated pretexts, retaliates against lawmakers for performing oversight, and purges legal constraints on command—then impeachment is not optional. It is the only lawful recourse left.
Neither path is easy. Both carry risk. But continued inaction carries more.
Consider the cascading consequences if this is not addressed now: a lethal escalation with foreign adversaries in the Caribbean, the collapse of US deterrence credibility, the internal fracturing of civil-military relations, and a precedent that may outlive us all—a presidency that may wage war without ever seeking the people’s consent.
Some of you may hope the moment will pass, that the ships will eventually turn around, that the next crisis will distract. But this time, the moment must not pass. The gravity is too great. The erosion has gone too far. This is not just about Venezuela, or Syria, or this presidency. It is about whether Congress still holds the power the Constitution gave it—or whether that power has already been quietly surrendered.
The decisive moment is before us. Once crossed, it cannot be undone. But there is still time.
Stand together. Speak through action. Enforce the law you swore to uphold. The Constitution does not protect itself. It relies on you.
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From Executive Overreach to Undeclared Wars, We Are Living in the World Cheney Made
Dick Cheney midwifed the emergence of a new warfare marked by extrajudicial killing, torture, secrecy, and endless war that transformed American society and politics, perhaps forever.
Nov 04, 2025
Dick Cheney has died, according to reports Tuesday morning, at the age of 84.
A formidable White House and defense department aide (under Presidents Richard Nixon and Gerald Ford) who left to head an equally formidable Texas-based oil company (with vast federal contracts) and then back in Washington as vice president to George W. Bush, Cheney is probably the most symbolic figure of the failure of the post-9/11 wars. In particular, the Iraq War. It was his amassed power and special cadre of operators known as neoconservatives inside the Old Executive Office building and E Ring at the Pentagon, who with strategic treachery dominated the politics and intelligence necessary to march Washington into the invasion of 2003 and to proliferate a Global War on Terror that lasted well beyond his tenure in office.
By all accounts it was his midwifed lies over WMDs that got us there, followed by the blunders (not anticipating the Iraqi insurgency); the loss of life (millions); the cost to our treasury; and the emergence of a new warfare marked by extrajudicial killing, torture, secrecy, and endless war that transformed American society and politics, perhaps forever.
For it was the exploitation of American grief, fear, and patriotism after 9/11 to pursue neoconservative wars in the Middle East that zapped the people's faith in government institutions. It pretty much destroyed the Republican Party and gave rise to populist movements on both sides of the aisle. It created a generation of veterans harboring more mistrust in elites and Washington than even the Vietnam War era. On the other end of the spectrum, it unleashed mercenary warfare, killer drones, civil wars, and police powers in the United States that have only served make the people less free and more fearful of their government. Thanks in part to Dick Cheney, the Executive, i.e. the president, has more power than ever—to bomb, detain, and "decapitate" any government leader he does not like.
There will be many obituaries written for Dick Cheney, all will be scarred with his role in the Iraq War. For a time he was a very, very powerful man and then he went away to retire and help raise his grandchildren. How many hundreds of thousands of American families were unable to do the same, plagued by death, disease, mental injuries, sterility, divorce, addiction, suicide—because of a war that he so relentlessly pushed but should never have been.
Cheney's Quest for More Executive Power and 'Machtpolitik'
Cheney first came to national prominence when he served as White House chief of staff (1975-77) to President Gerald Ford. In that position, he worked closely with Defense Secretary Donald Rumsfeld to counter and eventually derail Henry Kissinger's strategy of "detente" with the Soviet Union.
In that initiative, Cheney and Rumsfeld also worked closely with the Washington-based leaders of the emergent neoconservative movement, a number of them, including Richard Perle and Elliott Abrams, working in the office of Washington State Democratic Senator and Senate Armed Services Chairman Henry "Scoop" Jackson, to promote, among other things, Jewish emigration to Israel and in persuading Ford to convene an ultra-hawkish "Team B" outside the intelligence community to hype the alleged military threat posed by Moscow.
Their mutual interest in pursuing a massive US arms buildup and an aggressive foreign policy more generally would form the basis of an alliance between the aggressive nationalism and Machtpolitik of Cheney and Rumsfeld on the one hand, and the Israel-centered neoconservatives on the other that created the infamous Project for the New American Century in 1998 and ultimately became dominant in the post-9/11 "global war on terror" (GWOT) and the Iraq invasion for which he always remained unrepentant.
In the 1980s, Cheney, who chafed at the post-Watergate restrictions on presidential power, particularly regarding foreign policy, served as Wyoming’s single congressman in the House of Representatives where he became a staunch and powerful defender both of Ronald Reagan’s anti-Soviet policies and of the “Reagan Doctrine” of rolling back leftist regimes and movements in the Global South, notably in Central America and southern Africa. A staunch defender of the protagonists of what became the Iran-Contra scandal, a secret operation to sell weapons to Iran and use the proceeds to fund the Nicaraguan contras (for whom Congress had prohibited any US assistance), he later prevailed on President George H.W. Bush, for whom he served as defense secretary, to issue pardons to those, like Abrams, convicted as a result of the affair.
In the wake of the first Gulf War, Cheney commissioned his undersecretary of defense for policy, Paul Wolfowitz, to draft a long-term US strategy, called the Defense Planning Guidance (DPG), whose global ambitions, when leaked to the Washington Post, provoked a flurry of controversy about the future US role in the world.
Among other things, the draft called for Washington to maintain permanent military dominance of virtually all of Eurasia to be achieved by “deterring potential competitors from even aspiring to a larger regional or global role” and by preempting, using whatever means necessary, states believed to be developing weapons of mass destruction. It foretold a world in which US military intervention would become a “constant fixture” of the geopolitical landscape, and Washington would act as the ultimate guarantor of international peace and security.
One of the document’s principal drafters was I. Lewis “Scooter” Libby, who would later become Vice President Cheney’s highly effective chief of staff and national security adviser during George W. Bush’s first term until he was indicted for perjury.
The draft DPG would essentially become the template for what became in 1997 the Project for New American Century, a letterhead organization launched by neoconservatives Bill Kristol and Robert Kagan that in some ways formalized the coalition of Machtpolitikers like Cheney, Rumsfeld, and John Bolton; pro-Israel neoconservatives like Perle, Abrams, Libby, Eliot Cohen, and Frank Gaffney; and Christian Zionists, such as Gary Bauer and William Bennett.
PNAC subsequently published a series of hawkish statements and open letters demanding substantial increases in the US defense budget and stronger US action against perceived adversaries, notably Iraq, Iran, and China. Led by Cheney as vice president and Rumsfeld as defense secretary, many PNAC associates, particularly neoconservatives, took key posts in the George W. Bush administration in 2001, while PNAC became the leading group outside the administration banging the drum for invading Iraq and prosecuting the “global war on terror.” A legacy that leads directly to the current moment where Cheney's hard won Executive powers rule over a landscape of unauthorized US military interventions and undeclared wars all over the globe.
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Spineless Mike Johnson Grovels to Trump and Shutters the House Early
Imagine Johnson, a lawyer, took an oath to uphold the Constitution yet has no interest in safeguarding the independence of the congressional branch of our government.
Jul 26, 2025
The Speaker of the U.S. House of Representatives, Mike Johnson—probably the worst speaker in American history—shut down the House early this week before its five-week vacation. He wants to avoid holding votes on releasing the Epstein files that reportedly include, among other notables, President Donald J. Trump.
This is the latest valet service provided by a spineless Johnson, a Trump toady, whose groveling has no known boundaries. Imagine Johnson, a lawyer, took an oath to uphold the Constitution yet has no interest in safeguarding the independence of the congressional branch of our government.
Like Trump, he falsely characterizes what is in the Trump corporate giveaway tax-budget bill that shattered the country’s social safety net for American families. No one has ever even dared to promote such a draconian tax bill. Our country’s safety net has had the support of both parties until the wrecking crew of Trump, Johnson, and Senate Majority Leader John Thune (R-S.D.) showed up.
Johnson declined to protect his own party members who were raising serious questions about Trump’s big, destructive bill. He allowed the Trumpsters to physically threaten these dissenters to get them back in line.
No matter who is in control, the GOP or the Democrats, the crass obeisance to the executive branch remains the surrendering norm.
Most seriously, he has further crumpled the Founders’ system of checks and balances by turning the House of Representatives into an automatic rubber stamp for Trump. Johnson even refuses to allow his committee chairs to hold hearings on legislation Trump wants to ram through Congress. Johnson and his cronies do no oversight of the executive branch despite Trump’s vast violations and vicious cruelties, such as firing tens of thousands of key federal civil servants and further debilitating the resources of the Internal Revenue Service to collect taxes from the evasive super-rich and big companies. And the list goes on.
As The New York Times elaborated further with this description:
Mr. Johnson’s decision to shut down the House early was the latest example of how the speaker has in many ways ceded the chamber’s independence in order to please or avoid angering Mr. Trump. He has deferred to the president on matters large and small, including when it comes to Congress’ spending power. He quietly maneuvered this year to yield the House’s ability to weigh in on Mr. Trump’s tariffs, in order to spare Republicans from having to cast politically tricky votes on whether to end them.
The larger decline of Congress providing countervailing checks and balances reflecting the interests of the people, whose sovereign power under the Constitution has been delegated to it as a public trust, and has been eroded for decades. (See, “Congressional Surrender and Presidential Overreach” by Bruce Fein).
No matter who is in control, the GOP or the Democrats, the crass obeisance to the executive branch remains the surrendering norm.
The consensus by the two parties extends to the minimal days that Congress is actually in session. The members take numerous vacations (they call them “recesses”). They see the weeks they work as starting on Tuesday and ending on Thursday. In between even those days, they are busy in fundraising offices dialing for campaign dollars.
With such limited workdays for a full-time, well-paying job, members of Congress have less time for hearings to investigate wrongdoing, waste, and neglect of actions in the executive branch or the dubious ethical practices in the federal judiciary and federal prosecutors’ offices.
Increasingly, it is nearly impossible for informed citizens to secure congressional hearings and be invited as witnesses, as was the case in the 60s and 70s. Congress is, however, “open for business” if you represent big corporations. Congress has built a cocoon around itself with a sign reading: Business Lobbyists Only. People are bitterly complaining about their inability to get through to their senators or representatives if they are not big campaign contributors or from big business. (See, The Incommunicados by Ralph Nader and Bruce Fein).
The solution is obvious. The people back home must organize Congress Watch Groups—call it a crucial civic hobby (See: The Day the Rats Vetoed Congress)—and establish a tradition of formally summoning their wayward lawmakers to the people’s Town Meetings with the people’s agendas on the table (See, Breaking Through Power: It’s Easier Than We Think, City Lights Books).
There are many overdue changes and reforms backed by large majorities of liberal and conservative voters to make Watchdog Groups a formidable force. One percent of the voters can change Congress, especially because the necessities of the People are widely and strongly supported by millions of voters.
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How the Right-Wing Supreme Court Uses the Shadow Docket to Boost Trump’s Agenda
Although the Supreme Court has a long history of entertaining emergency appeals, emergency requests in high-profile cases proliferated during Trump’s first term and continue in his second.
Jun 04, 2025
In an unsigned two-page decision (Trump v. Wilcox) released on May 22, the U.S. Supreme Court upheld the Trump administration’s move to fire members of the National Labor Relations Board and the Merit Systems Protection Board without cause and in the middle of their designated terms. The decision reversed two separate judgments issued by two different D.C. District Court judges that had blocked the firings as unconstitutional.
The Supreme Court’s ruling was issued on an expedited basis as part of a rapidly expanding and highly controversial set of truncated decisions known as the “shadow docket,” a term coined by University of Chicago professor William Baude in a 2015 law review article to describe emergency appeals that come before the court outside of its standard “merits” docket and that are typically resolved without complete briefing, oral arguments, or detailed opinions. Although shadow-docket rulings are frequently used to lift, or “stay,” lower-court injunctions while further litigation continues, they often have the same practical effect as final decisions.
The two officials involved in the Wilcox case, Gwynne Wilcox of the NLRB and Cathy Harris of the MSPB, were nominated to their positions by President Joe Biden and were confirmed by the Senate. Before their dismissals, they were set to serve fixed terms, with Wilcox’s tenure expiring in 2028 and Harris’ in 2029.
Kagan is not alone in her critique that the shadow docket undermines precedent and lacks transparency.
The NLRB’s five-member governing board is charged with enforcing U.S. labor law and collective bargaining, and adjudicating alleged unfair labor practices. The MSPB has a three-member board and adjudicates federal employee challenges to adverse employment actions. Both agencies were established by Congress to operate as independent, nonpartisan overseers free from presidential interference.
President Donald Trump has long railed against agency independence. In a 2019 speech at Turning Point USA’s Teen Action Summit, he declared, “I have an Article 2, where I have the right to do whatever I want as president,” referring to the second article of the Constitution and the “unitary executive” theory, which contends that all executive power is concentrated in the president. Trump is also a proponent of the goal of “deconstructing the administrative state,” a phrase popularized by Steve Bannon and more recently promoted by Project 2025.
Sensing an opportunity to strike, Trump fired Wilcox, a career labor attorney, on January 27, a week after his second inauguration. Harris was sent packing a month later. The lower-court orders mandating their reinstatements were issued in March. But on April 9, Trump’s solicitor general and former criminal defense attorney D. John Sauer requested the Supreme Court to intervene and put the district-court judgments on hold, allowing the dismissals to take effect while returning the cases to the district courts and the Court of Appeals for additional hearings, a process that could easily take more than a year.
In his petition to the Supreme Court, Sauer implored the justices to disregard the court’s 1935 precedent decision in Humphrey’s Executor v. United States, which held that Congress has the constitutional power to enact laws limiting the president’s authority to fire executive officers of independent agencies that exercise quasi-legislative or quasi-judicial functions. Sauer asked the justices to put the lower-court reinstatement orders on hold or, alternatively, issue a final decision on the merits, endorsing the administration’s actions.
Although the firings of Wilcox and Harris clearly ran afoul of Humphrey’s, the Supreme Court granted a stay, and both women were sacked. Just as shocking, the court did so without hearing oral arguments, and without citing Humphrey’s a single time in its decision.
The three Democratic-appointees on the court dissented. Writing for herself and justices Sonia Sotomayor and Ketanji Brown Jackson, Justice Elena Kagan blasted her Republican colleagues for their bad faith and bias in favor of the president. “For 90 years,” she charged, “Humphrey’s Executor v. United States… has stood as a precedent of this Court. And not just any precedent. Humphrey’s undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control.”
Quoting Alexander Hamilton, she continued, “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents.” Without mentioning the shadow docket by name, she castigated the majority for rushing to judgment, “unrestrained by the rules of briefing and argument—and the passage of time—needed to discipline our decision-making.”
Although the Supreme Court has a long history of entertaining emergency appeals—such as last-minute requests for stays of execution in death penalty cases—emergency requests in high-profile cases proliferated during Trump’s first term, earning the shadow-docket sobriquet. According to Georgetown University law professor and shadow-docket scholar Steve Vladeck, the first Trump administration sought emergency relief 41 times, with the Supreme Court granting relief in 28 of those cases. By comparison, the George W. Bush and Barack Obama administrations filed a combined total of eight emergency relief requests over a 16-year period.
In December 2017, the Supreme Court issued a shadow-docket ruling allowing the third and final version of Trump’s racist Muslim travel ban to move forward pending further appeals. The court ultimately approved the ban in a 2018 merits decision. Later in Trump’s first go-round, the court used the shadow docket to uphold Trump’s executive actions calling for the diversion of federal funds to construct the southern border wall, prohibiting transgender people from openly serving in the military, and restricting the ability of Central American refugees to seek political asylum.
During Biden’s presidency, the shadow docket shifted to emergency requests filed by red state governments and private parties, but the court maintained its rightward bias. Among other shadow-docket decisions, the court ended Biden’s Covid-19 eviction moratorium; permitted the new six-week Texas abortion ban to take effect (it would later approve the ban in a final decision that overturned Roe v. Wade); and reinstated a first-Trump-term policy that made it easier for companies to pursue projects that pollute U.S. waters.
Kagan is not alone in her critique that the shadow docket undermines precedent and lacks transparency. At times the criticism has become heated. In September 2021, Atlantic staff writer Adam Serwer triggered an open feud with Justice Samuel Alito, penning a column that accused the court’s right-wing majority of publishing its ruling on Texas’ abortion law in the middle of the night to minimize public outcry. In response, Alito excoriated the media during an hour-long live-streamed speech delivered at Notre Dame University for portraying the court’s majority as “a dangerous cabal that resorts to sneaky and improper methods to get its ways,” and for feeding “unprecedented efforts to intimidate the court or damage it as an independent institution.”
Fortunately, not every shadow-docket order has leaned in the direction of Trump and the MAGA movement. One notable exception was the court’s May 16 ruling that extended an earlier ban on the deportation of undocumented Venezuelan men in immigration custody in Texas under the Alien Enemies Act of 1798. But even that decision ended with a note of encouragement for Trump, advising that “The Government may remove the [men]… under other lawful authorities.” There was also an impassioned 14-page dissent written by Alito and joined by Justice Clarence Thomas.
On May 30, the court issued another pro-Trump shadow-docket order, allowing the Trump administration to revoke the temporary legal status of more than 500,000 immigrants from Cuba, Haiti, Nicaragua, and Venezuela that had been granted by the Biden administration. And in the coming weeks and months, the court can be expected to return to the shadow docket again in cases involving the deportation of undocumented migrants to South Sudan, the operations of the Department of Government Efficiency (DOGE), and possibly the legality of Trump’s tariffs.
Given the court’s overall jurisprudence, there is scant reason to be optimistic that it will openly repudiate or substantially limit the president’s authority in these or other cases critical to the nation’s future. As Elizabeth Wydra, president of the liberal Constitutional Accountability Center, told Reuters in a 2021 interview, “What we are seeing are the consequences of a deeply conservative court, with the added travesties of the shadow docket.”
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Trump's First 100 Days of Unchecked Power
It's been a lawless few months, but there's some good news here. Through times like these, we can identify ways to make our democracy work better — and for the first time in our country’s history, make it work for everyone.
Apr 30, 2025
For nearly 250 years, the American system of government has been built to guard against an authoritarian leader. Our Constitution created a careful balance of powers among the branches of government to ward off tyranny. But just 100 days into President Donald Trump’s second term, we are seeing this system bend to the point of breaking under the weight of a willful disregard for the rule of law.
We must take this moment to finally install more concrete guardrails against corruption and abuse of power.
America’s system of checks and balances was never meant to depend on trust alone. It was designed to be tested and strengthened. We have relied on key tools to rein in executive overreach: a vigilant Congress, a strong judiciary, an engaged citizenry informed by public interest groups, an apolitical civil service, independent inspectors general, meaningful whistleblower protections, and ethics laws, to name several.
Some of these safeguards are holding. Right now, civil society is carrying much of the burden. Investigative journalists, watchdog groups, academic institutions, and advocacy organizations are doing the work that too many public officials have abandoned. They are shining lights into corners where the government prefers darkness, informing the public and pressuring institutions to act.
The problem isn’t just that guardrails are being destroyed; some have always been missing.
The courts, too, have shown signs of resilience. Despite last year’s Supreme Court ruling expanding presidential immunity, which chipped away at the judiciary’s role as a check on executive power, judges have issued rulings that uphold our basic constitutional principles. That said, recent moves from the judicial branch are alarming. They have done so even in the face of hostile rhetoric and open defiance.
These bright spots are important, but they are the exception, not the rule. We must confront a harsh reality: Many safeguards have proven extremely fragile. If we hope to emerge from this crisis with our democracy intact, we must also confront what has failed and what we must change.
Congressional oversight has become theatrical at best and nonexistent at worst. This is especially true when the president’s party holds power. And the legislative branch has let the executive branch encroach on its power of the purse and diminish its role in the policymaking process. That dynamic must change. Members of Congress need to remember they work for their constituents. That means scrutinizing the executive branch regardless of which party controls it, holding more hearings back in members’ districts, and creating more accessible public forums.
An apolitical and secure civil service has long been a stabilizing force in our government, ensuring that laws are implemented faithfully and without bias. But mass firings and politically motivated purges are dismantling this safeguard. When loyalty to the president is prized over competence or integrity, the system begins to collapse from within. To protect their essential work, we must strengthen legal safeguards for civil servants and insulate them from political retaliation.
Inspectors general — the independent watchdogs tasked with rooting out misconduct across federal agencies — have been fundamentally disempowered. President Trump has removed many of them without explanation or cause, threatening a critical line of oversight. Congress must not only rebuild but strengthen the independence of inspectors general. That may look like moving them to the legislative branch, where they could be protected from executive interference.
The work of everyone who cares about democracy... matters more than ever. Not just for today’s crisis, but also to ensure this doesn’t happen again.
Whistleblowers, another bedrock of internal accountability, are often our first and best defense against corruption. But their protections are increasingly toothless after the president illegally fired the head of the very office designed to uphold them. This move costs us the information we need to root out corruption and abuse.
The problem isn’t just that guardrails are being destroyed; some have always been missing. Ethics laws for the most powerful people in government are far too weak. Both the president and vice president are exempt from the conflict-of-interest rules that apply to the federal workforce. Members of Congress can buy and trade stocks even though their decisions often move markets. And Elon Musk’s role in the White House demonstrates how glaring financial conflicts can sow deep distrust in government actions. We need stronger laws at the highest levels so the public can be confident their government is working in their interest.
None of these failures exist in isolation. Each one enables the other. Without consequences, the last abuse of power is just practice for the next.
But here’s the good news: the reverse is also true. Strengthen any of these pillars, and you strengthen the whole system. That’s why our work — the work of everyone who cares about democracy — matters more than ever. Not just for today’s crisis, but also to ensure this doesn’t happen again.
We can make our democracy work — and for the first time in our country’s history, make it work for everyone. But only if we fight for it.
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Trump's Lawlessness Comes From Seeds Planted by Bush-Cheney
The federal government’s willingness to violate federal and international law with impunity didn’t begin with Trump.
Apr 21, 2025
In 2003, the Macedonian police arrested Khaled el-Masri, a German citizen vacationing in their country. They handed the unfortunate man over to the CIA, who shipped him off to one of their “black sites.” For those too young to remember (or who have quite understandably chosen to forget), “black sites” was the name given to clandestine CIA detention centers around the world, where that agency held incommunicado and tortured men captured in what was then known as the Global War on Terror. The black site in this case was the notorious Salt Pit in Afghanistan. There el-Masri was, among other things, beaten, anally raped, and threatened with a gun held to his head. After four months he was dumped on a rural road in Albania.
It seems that the CIA had finally realized that they had arrested the wrong man. They wanted some other Khalid el-Masri, thought to be an al-Qaeda associate, and not, as Amy Davidson wrote in the New Yorker, that “car salesman from Bavaria.”
El-Masri was not the only person that representatives of the administration of President George W. Bush and Vice President Dick Cheney mistakenly sent off to another country to be tortured. In an infamous case of mistaken arrest, a Canadian citizen named Maher Arar was detained by the FBI at JFK Airport in New York while on his way home from a vacation in Tunisia. He was then held in solitary confinement for two weeks in the United States, while being denied contact with a lawyer before ultimately being shipped off to Syria. There, he would be tortured for almost a year until the Canadian government finally secured his release.
An “Administrative Error”
I was reminded of such instances of “extraordinary rendition” in the Bush-Cheney era when I read about the Trump administration’s March 2025 deportation of Kilmar Armando Abrego García to a grim prison in El Salvador. Because of threats against him and his family from Barrio 18, a vicious Salvadoran gang, Abrego García had fled that country as a young teenager. He entered the U.S. without papers in 2011 to join his older brother, already a U.S. citizen.
He was arrested in 2019, while seeking work as a day laborer outside a Home Depot store and handed over to U.S. Immigration and Customs Enforcement (ICE), which accused him of being a member of another Salvadoran gang, MS-13. This proved a false claim, as the immigration judge who heard his case agreed. While not granting Abrego García asylum, the judge assigned him a status — “withholding from removal” — which kept him safe in this country, because he faced the possibility of torture or other violence in his homeland. That status allowed him to work legally here. He married a U.S. citizen and they have three children who are also U.S. citizens.
Then, on March 12, 2025, on his way home from his job as a sheet-metal apprentice, he was suddenly stopped by ICE agents and arrested. They told him his status had been revoked (which wasn’t true) and promptly shipped him to various detention centers around the country. Ultimately, he was deported to El Salvador without benefit of legal assistance or a hearing before an immigration judge. As far as is known, he is now incarcerated at CECOT, the Center for the Confinement of Terrorists, a Salvadoran prison notorious for the ill treatment and torture of its inmates. While built for 40,000 prisoners, it now houses many more in perpetually illuminated cells, each crammed with more than 100 prisoners (leaving about 6.5 square feet of space for each man. It is considered “one of the most dangerous prisons in the Western Hemisphere” with “some of the most inhumane and squalid conditions known in any carceral system.” Furthermore, among the gangs reported to have a substantial presence at CECOT is Barrio 18, the very crew Abrego García fled El Salvador to escape so many years ago.
The Trump Justice Department has now admitted that they made an “administrative error” in deporting him but have so far refused to bring him home. Responding to a Supreme Court ruling demanding that the government facilitate his return, the Justice Department on April 12th finally acknowledged to the D.C. district court that he “is currently being held in the Terrorism Confinement Center in El Salvador.” Its statement continued: “He is alive and secure in that facility. He is detained pursuant to the sovereign, domestic authority of El Salvador.” On April 14, 2025, in contemptuous defiance of the supreme court, President Trump and his Salvadoran counterpart Nayib Bukele made it clear to reporters that Abrego García will not be returning to the United States.
Previously, the government’s spokesman, Michael G. Kozak, who identified himself in the filing as a “Senior Bureau Official” in the State Department’s Bureau of Western Hemisphere Affairs, had failed to comply with the rest of Judge Paula Xinis’s order: to identify what steps the administration is (or isn’t) taking to get him released. The judge has insisted that the department provide daily updates on its efforts to get him home, which it has failed to do. Its statement that Abrego García “is detained pursuant to the sovereign, domestic authority of El Salvador” suggests officials intend to argue that — despite paying the Salvadoran government a reported six million dollars for its prison services — the United States has no influence over Salvadoran actions. We can only hope that he really is still alive. The Trump administration’s truth-telling record is not exactly encouraging.The technical term for such detainee transfers is “extraordinary rendition.” “Rendition” involves sending a prisoner to another country to be interrogated, imprisoned, and even possibly tortured. Rendition becomes “extraordinary” when it occurs outside of normal legal strictures, as with the cases of el-Masri and Ahar decades ago,, and Abrego García today. Extraordinary rendition violates the United Nations Convention Against Torture, which explicitly prohibits sending someone to another country to be mistreated or tortured. It also violates U.S. anti-torture laws. As countless illegal Trump administration acts demonstrate, however, illegality is no longer a barrier of any sort to whatever its officials want to do.
Two other flights left for El Salvador on the day Abrego García was rendered. They contained almost 200 people accused of being members of a Venezuelan gang, Tren de Aragua, and were similarly deported under the Alien Enemies Act of 1798 without any hearings. Are they actually gang members? No one knows, although it seems likely that at least some of them aren’t. Jerce Reyes Barrios, for example, was a Venezuelan soccer coach who sought asylum in the U.S. and whose tattoo, celebrating the famous Spanish soccer team Royal Madrid, was claimed to be evidence enough of his gang membership and the excuse for his deportation.
Andry José Hernández Romero is another unlikely gang member. He’s a gay makeup artist who entered the United States last August to keep a pre-arranged asylum appointment. Instead, he was arrested and held in detention until the Tren de Aragua flights in March. The proof of his gang membership? His “Tres Reyes” or “Three Kings” tattoos that were common in his hometown in Venezuela.
In fact, all 200 or so deportees on those flights have been illegally rendered to El Salvador in blatant defiance of a judge’s court order to stop them or return those already in the air. None of those men received any sort of due process before being shipped off to a Salvadoran hellhole. In response, Salvadoran President Nayib Bukele tweeted, “Oopsie… Too late” with a laughing-face emoji.
Even U.S. citizens are at risk of incarceration at CECOT. After Secretary of State Marco Rubio met with President Bukele, the State Department’s website praised his “extraordinary gesture never before extended by any country,” an offer “to house in his jails dangerous American criminals, including U.S. citizens and legal residents.” Trump reiterated his interest in shipping “homegrown criminals” to El Salvador during his press conference with Bukele. As former federal prosecutor Joyce Vance has observed, “If it can happen to Abrego Garcia, it can happen to any of us.”
It Didn’t Start with Trump
It’s tempting to think of Donald Trump’s second term as a sui generis reign of lawlessness. But sadly, the federal government’s willingness to violate federal and international law with impunity didn’t begin with Trump. If anything, the present incumbent is harvesting a crop of autocratic powers from seeds planted by President George W. Bush and Vice-President Dick Cheney in those war on terror years following the attacks of September 11, 2001. In their wake, the hastily-passed Patriot Act granted the federal government vast new detention and surveillance powers. The Homeland Security Act of 2002 established a new cabinet-level department, one whose existence we now take for granted.
As I wrote more than a decade ago, after September 11th, torture went “mainstream” in the United States. The Bush administration cultivated an understandable American fear of terrorism to justify abrogating what, until then, had been a settled consensus in this country: that torture is both wrong and illegal. In the face of a new enemy, al-Qaeda, the administration argued that the requirements for decent treatment of wartime detainees outlined in the Geneva Conventions had been rendered “quaint.” Apparently, wartime rights granted even to Nazi prisoners of war during World War II were too risky to extend to that new foe.
In those days of “enhanced interrogation,” I was already arguing that accepting such lawless behavior could well become an American habit. We might gradually learn, I suggested, to put up with any government measures as long as they theoretically kept us safe. And that indeed was the Bush administration’s promise: Let us do whatever we need to, over there on the “dark side,” and in return we promise to always keep you safe. In essence, the message was: there will be no more terrorist attacks if you allow us to torture people.
The very fact that they were willing to torture prisoners was proof that those people must deserve it — even though, as we now know, many of them had nothing whatsoever to do with al-Qaeda or the September 11th attacks. (And even if they had been involved, no one, not even a terrorist, deserves to be tortured.)
If you’re too young to remember (or have been lucky enough to forget), you can click here, or here, or here for the grisly details of what the war on terror did to its victims.
The constant thrill of what some have called security theater has kept us primed for new enemies and so set the stage for the second set of Trump years that we now find ourselves in. We still encounter this theater of the absurd every time we stand in line at an airport, unpacking our computers, removing our shoes, sorting our liquids into quart-sized baggies — all to reinforce the idea that we are in terrible danger and that the government will indeed protect us.
Sadly, all too many of us became inured to the idea that prisoners could be sent to that infamous offshore prison of injustice at Guantánamo Bay, Cuba, perhaps never to be released. (Indeed, as of January 2025, of the hundreds of people incarcerated there over the years, 15 war on terror prisoners still remain.) It should perhaps be no surprise, then, that the second time around, Donald Trump seized on Guantánamo as a possible place to house the immigrants he sought to deport from this country. After all, so many of us were already used to thinking of anybody sent there as the worst of the worst, as something other than human.
Dehumanizing the targets of institutionalized mistreatment and torture proved to be both the pretext for and a product of the process. Every torture regime develops a dehumanizing language for those it identifies as legitimate targets. For example, the torturers employed by the followers of Augusto Pinochet, who led Chile’s 1973 military coup, typically called their targets “humanoids” (to distinguish them from actual human beings).
For the same reason, the Israel Defense Forces now refer to just about anyone they kill in Gaza or on the West Bank as a “terrorist.” And the successful conflation of “Palestinian” with “terrorist” was all it took for some Americans to embrace Donald Trump’s suggestion that Gaza should be cleared of its people and turned into the “Riviera of the Middle East” for Israelis, Americans, and foreign tourists.
Trump’s representatives have used the same kind of language to describe people they are sending to that prison in El Salvador. His press secretary, Karoline Leavitt, referred to them as “heinous monsters,” which is in keeping with Trump’s own description of his political opponents as inhuman “vermin.” At a rally in New Hampshire in 2023, Trump told the crowd, “We pledge to you that we will root out the communists, Marxists, fascists, and the radical left thugs that live like vermin within the confines of our country.” Here he was talking not only about immigrants, but about U.S. citizens as well.
After years of security theater, all too many Americans seem ready to accept Trump’s pledge to root out the vermin.
It Can Happen to You
One difference between the Bush-Cheney years and the Trump ones is that the attacks of September 11, 2001, represented a genuine and horrific emergency. Trump’s version of such an emergency, on the other hand, is entirely Trumped-up. He posits nothing short of an immigration “invasion” — in effect, a permanent 9/11 — that “has caused widespread chaos and suffering in our country over the last 4 years.” Or so his executive order “Declaring a National Emergency at the Southern Border of the United States” insists. To justify illegally deporting alleged members of Tren de Aragua and, in the future (if he has his way), many others, he has invented a totally imaginary war so that he can invoke the 1798 Alien Enemies Act, which was last used during World War II to justify the otherwise unjustifiable internment of another group of dehumanized people in this country: Japanese-Americans.
Donald Trump has his very own “black site” now. Remember that El Salvador’s Nayib Bukele is perfectly willing to receive U.S. citizens, too, as prisoners in his country. Supreme Court Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Jackson, made that point in a statement that accompanied that court’s recent order requiring the Trump administration to facilitate Kilmar Abrego García’s return to the United States. They wrote, “The Government’s argument, moreover, implies that it could deport and incarcerate any person, including U.S. citizens, without legal consequence, so long as it does so before a court can intervene.”
As the justices remind us, it can happen here. It can happen to you.
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Saga of Fired NLRB Member, Who Was Just Reinstated Again, Appears Headed to Supreme Court
If he prevails at the Supreme Court, U.S. President Donald Trump "could gain extraordinary powers to investigate and penalize private businesses and individuals, tilt elections," and more, one outlet noted.
Apr 07, 2025
The full D.C. Circuit Court of Appeals on Monday issued a divided ruling that reinstated two members of labor-focused independent agencies whom the Trump administration had sought to remove. The ruling is likely not the end of the legal saga and the case appears headed to the U.S. Supreme Court.
The federal appeals court voted 7-4 to reverse an earlier decision by a three-member panel of the D.C. Circuit Court of Appeals that upheld the Trump administration's dismissal of National Labor Relations Board (NLRB) member Gwynne Wilcox and Merit Systems Protection Board (MSPB) member Cathy Harris.
Since Trump's return to the White House, Harris and Wilcox have been repeatedly removed and reinstated following contradictory rulings, according to The Guardian.
Monday's ruling was split along partisan lines, with the four dissenting judges all appointed to the court by Republican administrations, per The Guardian.
Wilcox was first appointed to the NLRB, which safeguards private sector workers' rights to organize, in 2021 by then-President Joe Biden and was re-confirmed for a five-year term by the Senate in 2023. Wilcox's removal meant the body did not have a quorum, because it needs three members to have a quorum. It once again has a quorum and can issue decisions.
As a member and former chair of the MSPB, Harris helped lead an agency that reviews federal employee firings, suspensions, and whistleblower claims.
According to the outlet Democracy Docket, the court ruled Monday that the administration's dismissal of Wilcox and Harris ran afoul of the U.S. Supreme Court's ruling in Humphrey's Executor v. U.S., a 1935 case that upheld removal restrictions for government officials on multimember adjudicatory boards.
"Trump's Department of Justice said it believes congressional limitations on the president's removal power are unconstitutional and that it will urge the Supreme Court to overturn Humphrey's Executor," Democracy Docket reported. "If the Supreme Court ultimately grants Trump the ability to fire members of independent bodies, he could gain extraordinary powers to investigate and penalize private businesses and individuals, tilt elections, and use monetary policy for political purposes."
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What Would the Founders Make of Trump’s Authoritarianism?
The Founders imagined the president as an administrator, not a policymaker, and definitely not an imperial unitary executive.
Mar 26, 2025
The U.S. Constitution is very specific about the powers of Congress and very vague about the powers of the president and the judiciary. While the authors of the nation’s founding documents were explicit that power had to be divided between three coequal branches, the legislative, executive, and judicial, they did not anticipate the authoritarianism of President Donald Trump, the cowardice of congressional representatives beholden to a populist demagogue for endorsements and campaign funds, nor the reactionary ideology of a right-wing Supreme Court. It is not fair to blame the founders for events 250 into the future, with the United States in the midst of a major constitutional crisis.
In 1787, Benjamin Franklin placed the responsibility for upholding the Constitution on future generations when he warned that the new government is “A republic, if you can keep it.” Abraham Lincoln recognized the difficulty of maintaining a country based on this one’s founding principles in his Gettysburg Address over 150 years ago when he told the assembled, “We are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure.”
The Constitution assigns the president an undefined executive power with some very specific tasks. The president represents the country in talks with other countries and can negotiate treaties, but the treaties must be approved by the Senate; the president can veto or sign bills approved by both houses of Congress, and then they are responsible for enforcing the laws; and the president acts as Commander-in-Chief of the military during a war, nominates judges and ambassadors pending Senate approval, and grants pardons.
The Trump claim for a unitary executive and virtually unlimited executive power undermines everything they were trying to create.
There is no mention in the Constitution of political parties or of Cabinet members. Departments and Cabinet positions were created by Congress later to make the government run more smoothly. Executive orders are not mentioned in the Constitution either, and they do not carry the power of law, but every president since George Washington has issued executive orders as instructions to heads of the different federal departments about how to carry out their duties. The Constitution does not give the president the authority to issue executive orders that overturn or ignore laws passed by Congress or decisions made by the Supreme Court.
Since George Washington’s presidency, different presidents have interpreted their powers and responsibilities as chief executive in different ways. President Trump embraces the modern unitary executive theory, which claims that the president has sole authority over the executive branch of the government. According to this theory presidential power can only be restrained if a president is impeached by the House of Representatives and convicted by the Senate, something that it so difficult that it has never happened in United States history.
Without restraints, Trump argues he can summarily fire without cause any employee of the executive branch including Cabinet members approved by the Senate, he can decide not to spend money allocated by Congress, and he can ignore laws he does not agree with even though they were passed by Congress and signed by a previous president. The right-wing majority on the Supreme Court seems inclined to support Trump’s view of executive power. In 2020, during Trump’s first presidency, the Supreme Court narrowly ruled 5-4 that “the entire ‘executive power’ belongs to the president alone,” although it never actually explained what executive power means.
Three of the nation’s founders, Thomas Jefferson, James Madison, and Alexander Hamilton, addressed the allocation of power in the new government and explained why power had to be divided. Thomas Jefferson was not at the Constitutional Convention, but he did address the separation of powers in his 1784 Notes on the State of Virginia, with ideas that helped shape the Constitution. While Jefferson was more concerned with the legislative branch assuming too much power, he was very clear that “all the powers of government, legislative, executive, and judiciary, result to the legislative body,” but “concentrating these in the same hands is precisely the definition of despotic government... An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.” Jefferson warned, “The time to guard against corruption and tyranny, is before they shall have gotten hold on us. It is better to keep the wolf out of the fold, than to trust to drawing his teeth and talons after he shall have entered.”
James Madison, who was the secretary at the Constitutional Convention, explained how separation of powers should work in essays he wrote during the debate in New York State over ratification of the Constitution. In Federalist Papers 47-50, he explained the importance of separating powers and how the principle was applied in the Constitution. He also addressed concerns about how the system would work. An underlying principle of the new government was that “ambition must be made to counteract ambition,” balancing power among the branches of government to protect individual rights and prevent tyranny. Madison famously wrote in Federalist Paper 51, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself.”
Alexander Hamilton, an active participant in the Constitutional Convention, wrote in favor of a strong executive and is used to justify the unitary executive theory; however, Hamilton was not discussing unlimited executive authority but was disputing the idea of a presidential council. Hamilton explained the specific powers assigned to the president and did not anticipate claims that a president would be virtually unchallengeable. According to Hamilton, “The only remaining powers of the executive are comprehended in giving information to Congress of the State of the Union; in recommending to their consideration such measures as he shall judge expedient”; and “faithfully executing the laws.” He was very careful to distinguish between the president as an elected executive subject to impeachment and the power of a hereditary monarch.
I think the Founders imagined the president as an administrator, not a policymaker, and definitely not an imperial unitary executive. Their bigger fear was that congressional majorities would attempt to usurp the executive’s responsibility to administer laws in order to benefit special interest groups. For the same reason they wanted an independent judiciary to prevent the politically motivated administration of justice. The Trump claim for a unitary executive and virtually unlimited executive power undermines everything they were trying to create.
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Trump’s Rule by Fiat Is a Grotesque Continuation, Not an Aberration
The playbook he uses was written by both parties over decades of eroding democratic norms, consolidating executive power, and circumventing meaningful checks on authority.
Mar 25, 2025
U.S. President Donald Trump’s latest defiance of the courts—this time refusing to follow an appellate judge’s order to halt migrant deportations—has triggered another round of liberal outrage. Critics are calling it an authoritarian move, a blatant assault on the rule of law, and a warning sign that American democracy is on its last legs.
But if this is the end of democracy, it’s been ending for a long time. And not just at Trump’s hands.
The central truth we keep missing—especially on the left—is that Trump is not an aberration. He’s a grotesque continuation. The playbook he uses was written by both parties over decades of eroding democratic norms, consolidating executive power, and circumventing meaningful checks on authority. Trump didn’t invent the impulse to rule by fiat; he just brings it out into the open.
If we want to stop the next Trump, or the next expansion of executive lawlessness, we can’t keep pretending he came out of nowhere.
Consider the legal justification Trump has floated for ignoring the courts: The United States is “at war.” Therefore, he claims, wartime powers apply—even domestically, even over immigration courts. To many, this sounds like a dystopian twist. But it’s eerily familiar. Because the same logic has been used, repeatedly, by both Republican and Democratic administrations since 9/11.
After the attacks on the Twin Towers, Congress passed the Authorization for Use of Military Force (AUMF), which gave the executive branch sweeping powers to pursue terrorism around the world. That one document has served as the legal scaffolding for 20-plus years of undeclared wars and covert operations in Yemen, Somalia, Iraq, Syria, Pakistan, and elsewhere.
No further congressional approval was needed. The public never had a say. The war powers clause of the Constitution became symbolic—if not obsolete.
Former President Barack Obama inherited that framework and expanded it. His administration developed the now-infamous drone kill list, justified targeted assassinations (including of U.S. citizens), and defended the government’s right to indefinitely detain terrorism suspects without trial. Obama didn’t officially suspend habeas corpus, but in practice, he upheld a system that made the writ meaningless for hundreds of detainees held at Bagram and Guantánamo. The position of his Department of Justice was clear: The executive has the authority to detain and kill, beyond judicial oversight, because we are at war.
This is the true bipartisan legacy that paved the way for Trump. The removal of checks and balances didn’t happen overnight. It was built incrementally, piece by piece, under the banner of national security—with the cooperation and silence of the same liberal establishment that now acts scandalized by Trump’s every defiance.
It’s worth asking: Why wasn’t there more pearl clutching when the executive branch was unilaterally deciding who lived or died abroad, without congressional debate or judicial process? Why didn’t more alarm bells ring when Democrats joined Republicans in handing over war-making powers and then refused to take them back? Why was it acceptable to rule by emergency decree when the emergency was foreign—but suddenly unacceptable when the same logic is turned inward?
Trump is now openly talking about “eradicating” the Houthis in Yemen—an aggressive military escalation that directly contradicts the MAGA-era promise of no new foreign wars. So much for populist anti-interventionism. In lockstep with Benjamin Netanyahu’s Israel, Trump appears eager to resume the forever war posture. And once again, no one’s talking about congressional approval.
This is the cycle we’re caught in. Trump exposes the tools others helped create. He strips them of their moral veneer, revealing the ugly core. And rather than confront the system itself, liberals point at Trump as a singular villain—as if everything was working just fine before he came along.
The truth is harder to face: If we want to stop the next Trump, or the next expansion of executive lawlessness, we can’t keep pretending he came out of nowhere. We need to reckon with the fact that our democracy has been undermined from within—by both parties, for years. We need to challenge not just the man, but the machine.
And that’s something the Democratic Party, in its current corporate and security-state-aligned form, seems unwilling—or unable—to do. It would require renouncing its own legacy, from the Clinton-era crime bill to Obama-era surveillance and drone wars. It would require fundamentally rethinking how power is distributed in this country, and how easily it can be abused.
Until that happens, we shouldn’t be surprised when the next Trump defies the next court order. We shouldn’t act shocked when the language of war is used to suspend due process. We shouldn’t cling to the fantasy that our institutions will save us, when those institutions have been hollowed out by decades of bipartisan compromise.
Trump didn’t break democracy. He just took the mask off.
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A Right-Wing Supreme Court Won't Save Us From This Right-Wing President
Today especially, remember that we celebrate President's Day—not Dictator's Day—for a reason.
Feb 17, 2025
It is well to remind ourselves that today is President’s Day, not Dictator’s Day.
Of all the things the framers of the Constitution worried about, their biggest worry was that a president would become as powerful as a king. Which is why they created Congress and the judiciary — to check and constrain him.
Fast forward to the first Gilded Age of the late nineteenth century, when inequalities of income and wealth had become extreme that the so-called “Robber Barons” of the era (think Elon Musk, Jeff Bezos, and Mark Zuckerberg) controlled the economy, and corruption was rampant. (I say “first” Gilded Age because we are now clearly in the second.)
Reformers of that era created an income tax to try to limit the Robber Barons’ incomes, limits on corporate campaign expenditures to limit their political reach, and independent regulatory agencies to limit their power. The Federal Trade Commission, for example, was established as an independent agency in 1914, to take on corporate monopolies and fraud.
Fast forward again to today. There are by now 19 independent regulatory agencies, including the Securities and Exchange Commission, the Federal Reserve, the Commodity Futures Trading Commission, the National Labor Relations Board, the Federal Deposit Insurance Corporation, the Consumer Financial Protection Bureau, and the Office of Special Counsel.
These independent agencies, staffed with experts, have become a major countervailing power to the political clout of large corporations.
But I fear that the Supreme Court is about to end their independence.
On Sunday, White House lawyers asked the justices to allow Trump to fire the head of an independent watchdog agency. It’s the first case to reach the Supreme Court arising from the blizzard of actions taken by Trump in the early weeks of the new administration.
The White House’s emergency application asks the Supreme Court to vacate a federal trial judge’s order temporarily reinstating Hampton Dellinger, head of the Office of Special Counsel.
The Office of Special Counsel — a little-known but important independent agency — enforces federal whistleblower laws, which protect whistleblowers from political retribution, and the Hatch Act, which prohibits federal employees from engaging in most political activity.
In the 1978 law that established the Office of Special Counsel, Congress gave the Counsel a five-year term and provided that he or she could be removed only for “inefficiency, neglect of duty, or malfeasance in office.”
But Trump’s one-sentence email to Dellinger on Feb. 7 gave no reasons for firing him, effective immediately.
Dellinger sued. He called his removal illegal and argued that nothing about his performance could possibly meet the standard Congress laid out for dismissing a special counsel:
“Since my arrival at OSC last year, I could not be more proud of all we have accomplished. The agency’s work has earned praise from advocates for whistleblowers, veterans, and others. The effort to remove me has no factual nor legal basis — none — which means it is illegal.”
Since February 7, Dellinger has continued to police the government against Hatch Act and whistle-blower violations — even when they have involved federal workers who allegedly discriminated against Trump. (In a complaint filed last Tuesday, Dellinger alleged that, during a hurricane response in October, an aid supervisor for the Federal Emergency Management Agency illegally instructed FEMA workers not to visit homes with Trump signs.)
Last Monday night, Judge Amy Berman Jackson of the Federal District Court in Washington issued a temporary restraining order blocking Trump from firing Dellinger.
Judge Jackson wrote that the 1978 law “expresses Congress’s clear intent to ensure the independence of the special counsel and insulate his work from being buffeted by the winds of political change,” adding that the government’s “only response to this inarguable reading of the text is that the statute is unconstitutional.”
On Saturday, a divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit rejected Trump’s emergency motion for a stay of Judge Jackson’s ruling. The unsigned majority opinion said the government’s motion was premature.
“The question here is not whether the president is entitled to prompt review of his important constitutional arguments. Of course he is. The issue before us is whether his mere claim of extraordinary harm justifies this court’s immediate review, which would essentially remove the legal issues from the district court’s ambit before its proceedings have concluded.”
In its Sunday filing before the Supreme Court, the White House said the Supreme Court “should not allow lower courts to seize executive power by dictating to the president how long he must continue employing an agency head against his will.” Translated: Congress can not limit the president’s power to fire heads of independent agencies.
Make no mistake. This is a fundamental challenge to the basic idea — part of the fabric of our government for well over a century — that Congress has the power to create independent agencies.
Trump’s emergency application took direct aim at a precedent from 1935 in which the Supreme Court unanimously ruled that Congress can shield independent agencies from politics.
That case, Humphrey’s Executor v. United States, concerned a federal law that protected commissioners of the Federal Trade Commission, saying they could be removed only for “inefficiency, neglect of duty or malfeasance in office” — the same language that Congress used decades later to protect the Special Counsel.
Franklin D. Roosevelt nonetheless fired a commissioner, William Humphrey, arguing only that Humphrey’s actions were not aligned with the administration’s policy goals. The Supreme Court held that the firing was unlawful and the law establishing the independence of the Federal Trade Commission was constitutional.
Fast forward again. The Roberts Supreme Court doesn’t like independent regulatory agencies. Most of the current justices subscribe to what’s called the “unitary executive” theory, a bonkers notion that the framers intended for a president to have total control over every aspect of the executive branch.
In 2020, the Roberts Supreme Court laid the groundwork for reversing Humphrey’s Executor in a case involving the Consumer Financial Protection Bureau. The law that created the Bureau — again, using language identical to that at issue in Humphrey’s Executor and in Dellinger’s case — said the president could remove its director only for “inefficiency, neglect of duty or malfeasance in office.”
In a 5-to-4 decision, the Supreme Court struck down that provision, ruling that it violated the separation of powers and that the president could remove the bureau’s director for any reason. Roberts, writing for the majority, said the presidency requires an “energetic executive.” He continued:
“In our constitutional system, the executive power belongs to the president, and that power generally includes the ability to supervise and remove the agents who wield executive power in his stead.”
Two justices — Clarence Thomas and Neil M. Gorsuch — would have pulled the plug on independent agencies then and there. Thomas wrote:
“The decision in Humphrey’s Executor poses a direct threat to our constitutional structure and, as a result, the liberty of the American people. With today’s decision, the court has repudiated almost every aspect of Humphrey’s Executor. In a future case, I would repudiate what is left of this erroneous precedent.”
Justice Elena Kagan, writing for what was then the court’s four liberals, dissented, saying the Constitution did not address the scope of the president’s power to fire subordinates. Congress should therefore be free, she said, to grant agencies “a measure of independence from political pressure.”
That 2020 decision by the majority of the Supreme Court anticipated the Supreme Court’s decision last July that granted Trump, then a private citizen, immunity from prosecution for any “official” conduct during his first term.
So what now? I’m afraid the Trump White House and the Supreme Court have teed up the Dellinger case to mark the end of Humphries Executor — and therefore the practical end of independent agencies. They may carve out the Federal Reserve on some pretext, but they are bent on centralizing presidential power.
I wish I could be more hopeful, but I honestly don’t see any other decision emerging from this high court.
Celebrate President’s Day today, not Dictator’s Day. And don’t, whatever you do, give up hope. This is all part of democracy’s stress test. I guarantee that eventually democracy will come out stronger for it.
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