SCOTUS Can Let the President Break the Law; They Can't Change It

S E E D E D   C O N T E N T

We are now cranking up another edition of the "will he or won't he?" Trump song and dance, this time about firing Fed Chair Jerome Powell. Trump manages to add an additional pungency to these dramas by trying to fire the guy who is actually his own Fed Chair. Biden renominated Powell. But Trump actually gave him the job. Axios just pushed a newsletter update that ran through this drama, first reporting the events of the day and then adding this: "What we're watching: Federal law and Supreme Court precedent say presidents cannot fire the Fed chair over a policy disagreement." It then goes on from there. But that's actually the end of the story. The other possibilities are illegal.

It is critical to remember these things. I've often used the metaphor of a pilot's flight instruments. Under flight rules, you're taught only to follow the instruments. Your body and senses may be telling you you're right-side up but actually you're upside down. They may be telling you you're going up but you're actually going down. Your instruments are reality; your body and sensations are lying to you.

In a moment like this, and very much like that flight analog, you may not be able to control what's happening but you need to know what's happening. The whole conversation ends with that quote above. Anything else is illegal. The Supreme Court might allow Trump to break the law. But that will be what it is — allowing him to break the law. We will collectively have to grapple with that reality. But it will still be illegal. The Court can say up is down, but up will still be up. It is simply not the case that Congress made the law, that Congress understood what the law meant, that it was universally understood what the law meant, but that we now have a Supreme Court which can simply start history from scratch. We might as well say that Moby Dick was a donkey rather than a whale.

And this brings me to a key point. Trump is hungry to walk through this door of lawless autocracy. But it is the conservative legal movement, embodied in the Federalist Society, organized by Leonard Leo and others, who opened the door. They manufactured the fraudulent idea that presidents cannot be constrained by the law. They imported it from abroad, from the degenerate ideologues of autocracy. They did this. They created the current moment in which a renegade President can simply start chainsawing through the legal fabric and do anything he wants and we, the citizens of the country, must wait in anxious expectation to learn which if any of the laws turn out to be real. That's not how the rule of law works. It's not a game of Magic Eight Ball, built by design on inherent suspense and uncertainty. It's nature is its clarity and fixity, especially during arduous times of tumult and fear.

Yes, I am fully versed on the theory of purported unitary executive power. It's a fraud, literally a foreign imposition. It unquestionably fails any test of the ideas of the people who wrote the Constitution as well as the bounds of the text itself. The only other reasonable standard is one of function. And the present moment illustrates with an almost perfect clarity that it fails that test as well, the test of constitutionalism itself since the doctrine's central feature is to empower and tear away any obstacles that a renegade, lawless president might confront. We're literally seeing that right now. Anyone who has read the Federalist Papers in their totality knows that somewhere between and third and a half of the essays are very specifically about Donald Trump.

The core aim of the 1787 Constitution was to create a viable national government with a robust executive power. That represented a significant national course correction from the first years after the overthrow of the monarchy. The question was whether that could be done without creating a tyrant-in-the-making. That was the challenge of writing the document and it was the sales challenge that the newspaper essay campaign (which we now call the Federalist Papers) was meant to answer.

We can talk endlessly about whether we're still in a democracy or whether Trump wants to be or is acting like a dictator. We can debate words such as "fascism" that were unknown before a century ago. But what we are seeing right now is the definition of tyranny, a half-archaic concept the founders of the American Republic were very familiar with. Trump's rule is both lawless and arbitrary. He has taken the bundle of powers the Constitution provides him to govern and defend the Constitution and turned them to an entirely different and corrupt purpose: using them as weapons to attack the people and institutions he deems his enemies.

This kind of creature is precisely what the core architects of the constitutional order said the document could never be used to create. The President is no King; he is subject to the law. And yet here we are. And it is the fraudulent doctrine of unitary executive authority which is walking before him like a statutory bushwhacker, clearing a path for him through every law and restraint. As I wrote above, this doctrine is based on theories and philosophical principles totally unknown to the architects of the Constitution. It's legitimacy can only rest on an argument about function. It fails the test totally. The Constitution was sold to the American people, designed to prevent such a creature from emerging from its words and structures. But this doctrine turns out to be that creature's greatest ally.