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“In America,” Thomas Paine wrote at the founding, “the law is king.” Amid today’s governing and constitutional crisis, we are finding out whether that is still true.
We’ve been astonished and appalled by how the president and the world’s richest man have assaulted so much of the government. It can be hard to tell if this is a concerted attack on the rule of law or just a bunch of people running around saying “what happens if I push this button?”
There is a bright thread running through, beyond bombast, ego, and a desire to smash government, any government.
Over and over, their actions violate the law — either the Constitution, or statutes, or both. Some moves may be designed to dare the courts to sanction these power grabs. More likely, it seems increasingly clear, they don’t care.
Take Elon Musk’s lightning war on the U.S. Agency for International Development, the government’s principal body providing humanitarian assistance around the world. USAID has always been a stellar example of “soft power,” the reputational idea that the wealthy United States can be a force for good in the poorest parts of the world.
Musk’s aides took over the agency. They froze most foreign aid, threatening the provision of medical care and the safe operation of refugee camps. They accessed its confidential data. They shut down its website. Staff was ordered to stay away from the office. Musk announced their plan is to “shut down” the agency. He says the agency is a “criminal organization,” while President Trump now claims it is led by “radical lunatics.” Finally, Secretary of State Marco Rubio said the agency was guilty of “insubordination” and it would now be part of the State Department.
All this is illegal. USAID was established as an independent entity in a law passed by Congress in 1998. Congress could shut it down or move it, but a roving billionaire adviser to the president cannot.
Why this particular agency? It’s actually cheap politics. Foreign aid is never popular. Even though it takes up less than 1 percent of the federal budget, citizens assume that it is about one-third of government spending, making it an easy target for demagogues.
Then there was the move to freeze all federal grants and loans across the government, about $1 trillion worth. This purported to stop “Marxist equity, transgenderism, and green new deal social engineering policies” as well as other mythical creatures, but it would have affected everything from education to health care. An uproar ensued, the opposition party finally woke up, and judges began to rule. Trump backed down.
This too was a massive legal and constitutional breach. Under the Constitution, Congress has “the power of the purse.” It appropriates the money for the activities of the federal government. Presidents cannot just decide to put an indefinite blanket freeze on spending or refuse to spend money on this or that without involving Congress.
Presidents from both parties have at times refused to spend funds, but Richard Nixon abused this power, as he did so many others on his way to resignation. Congress passed the Impoundment Control Act of 1974 to curb the practice. Under the law, presidents must notify Capitol Hill of their intent to hold on to allocated funds. Congress can accept or reject this proposal, and if it does not act within a certain amount of time, the money must be released.
If presidents can decide when to spend and not spend all on their own, then Congress becomes little more than an advisory body to a monarch. Certainly that’s what the framers thought.
Over and over, in just two weeks in office, Trump has flagrantly broken the law or violated the Constitution. The executive order purporting to end birthright citizenship, which a federal judge said was “blatantly unconstitutional” as he blocked it. The firing of fraud-finding inspectors general across the government without providing notice or a rationale to Congress. And more.
All this is happening while the new president is making clear that the law will not be enforced when it comes to his own misconduct or that of his supporters. The Inauguration Day pardon of the January 6 insurrectionists was followed by a purge of the Federal Bureau of Investigation, with the top career officials removed and hundreds of agents now being probed because they worked on the prosecution of the Capitol rioters. The head of the New York field office wrote to his staff, “Today, we find ourselves in the middle of a battle of our own, as good people are being walked out of the F.B.I. and others are being targeted because they did their jobs in accordance with the law and F.B.I. policy,” and he vowed to “dig in.”
And let’s not forget the takeover of the Treasury Department’s payment system by a squad of junior engineers working for Musk, which could give him access to the most sensitive information held by the government or be a tool for retribution, competitive advantage, or even just the shutoff of payments, with catastrophic economic consequences.
Ignore the media headlines reporting that these moves “raise questions” or “push the boundary.” It’s an anticonstitutional lawbreaking spree. Will that matter? Members of Congress from both parties should be shouting objections. Trump’s fellow Republicans, so far, have utterly abdicated. Federal courts have a duty to step up. Even this highly political Supreme Court will rule against Trump on some things — but these justices have repeatedly proven highly deferential to presidential power. (The ruling conferring vast immunity from criminal prosecution for illegal acts if they can be couched as “official” is less than a year old.)
Ultimately, public opinion will matter most.
Journalist Chris Hayes recently said that we are in a phase between the lightning and the thunderclap. All this drama, tumult, and illegality has erupted. The real-world consequences — swooning stock markets, shuttered health clinics, and more — have yet to take hold. Perhaps the new administration has made an indelible bad impression on those beyond its loyalists. We will find out how many people truly care about the rule of law.
