Trump and his lawyers embrace the logic of dictatorship
And they're not even trying to hide it at this point.
🗣️ 🎤 🤯 With corporate outlets obeying in advance, supporting independent political media is more important than ever right now. Public Notice is possible thanks to paid subscribers. If you aren’t one already, please click the button below and become one to support our work. 🗣️ 🎤 🤯
Donald Trump is busy seizing power through executive orders and letting Elon Musk and his gang of racist DOGE bros run amok through America’s government agencies. It’s an unprecedented upending of the separation of powers, an authoritarian reshaping of America.
While Trump and his henchmen deconstruct the administrative state, his lawyers are embracing the logic of dictatorship. The core argument emerging in their legal filings and executive orders — one without support anywhere in the Constitution or the law — is that simply by being elected, Trump has the power to do whatever he wants.
The issue is not the use of executive orders as such. The authority to issue them comes from Article II of the Constitution, which vests executive power in the president and requires him to “take care that the laws be faithfully executed.” Executive orders are meant to tell the executive branch how to implement existing laws. However, in part because Congress is now so routinely deadlocked, every president in the 21st century has issued scores of them that attempt to implement policies outside of the legislative process.
But executive orders aren’t laws, and the authority of presidents to issue them is not absolute. They can’t contradict or overturn existing statutes. Subsequent presidents can undo executive orders just by issuing a new executive order saying so. And federal courts have routinely struck down EOs for being unconstitutional or for exceeding the scope of the president’s authority.
When executive orders are challenged in court, government attorneys typically point to the underlying laws that give the president the authority to issue the order. Trump seems to have dispensed with that requirement, however.
Trump’s imperial ambitions have made for some laughably thin legal theories. As Just Security noted, the government’s argument in defense of Trump’s birthright citizenship EO does not reference any citizenship statutes nor point to any authority that would give Trump the right to undo birthright citizenship via the stroke of a pen. Instead, after quoting the relevant part of the Fourteenth Amendment — ”All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside” — the EO just goes on to state that it “has never been interpreted to extend citizenship universally to everyone born within the United States.”
The problem for Trump is that the Fourteenth Amendment has absolutely historically been interpreted to do just that. The EO attempts to say that “subject to the jurisdiction thereof” are magic words that have always excluded people whose parents were not citizens when they were born, but that’s nothing but a recent crackpot theory from election denier attorney John Eastman.
Similarly, the administration’s argument that Trump’s sweeping changes to border enforcement are constitutional is based only on the assertion that if Trump thinks existing immigration laws are ineffective, he has the authority to basically make new ones on his own. This level of overreach is truly wild, and if Republicans in Congress were not fully in thrall to Trump’s dictatorial dreams, it would be a five-alarm fire in both the House and the Senate.
A mere three weeks into his presidency, Trump has taken multiple actions that openly defy existing laws and explicitly encroach on legislative authority. But Republicans seem content to do nothing except sit on their hands and let Trump take a torch to democracy.
Trump ramps up to defying lawful court orders
It’s become a reflexive cliche to imagine what the GOP would be doing if any of this was happening under a Democratic president. Still, it really is impossible not to think about how Republicans would be howling with rage had Joe Biden tried to simply shutter a government agency because he felt like it.
But that’s exactly what Trump has done in functionally shutting down the United States Agency for International Development (USAID). Only Congress has the authority to create and abolish government agencies, and it’s a power you’d think it’d be interested in retaining. Instead, we have the feckless speaker of the House, Mike Johnson, saying that destroying agencies is just “stewardship” and “an active, engaged, committed executive branch doing what the executive branch should do.”
A note from Aaron: Working with brilliant contributors like Lisa takes resources. If you aren’t already a paid subscriber, please sign up to support our work.
Since congressional Republicans shrugged off the shuttering of USAID, why not just keep going? That seems to be Trump’s plan, as it appears now that the Consumer Financial Protection Bureau (CFPB) is being demolished. Russ Vought, a Project 2025 ghoul heading the Office of Management and Budget and the CFPB, just zeroed out the agency’s funding for the next quarter and instructed CFPB staff to stop working.
Congressional Republicans also seem perfectly happy to give up the power of the purse. The authority to tax and spend belongs to the legislative branch, and once Congress has allocated funds, the president isn’t allowed to just refuse to spend those sums. Richard Nixon tried to impound already-allocated money, and Congress responded by passing the Congressional Budget and Impoundment Control Act of 1974, restricting the president’s ability to do that. But Republicans didn’t bat an eye as Trump issued massive spending freezes, essentially giving him unilateral spending authority.
Part of what’s especially terrifying here is that Trump is taking unilateral action to do things that Republican members of Congress would happily help him with. The CFPB is an agency so loathed by the GOP that every Republican state attorney general joined a lawsuit alleging its funding scheme was unconstitutional. With Congress holding the power of the purse, it would be free to defund the CFPB. With Congress holding the authority to create and abolish agencies, it would be free to close the agency entirely or to radically limit its pro-consumer mission. But Trump has shown no inclination to approach lawmakers on this, and congressional Republicans don’t seem to care either.
It can’t be stressed enough that there is no meaningful legal support for Trump’s actions. Yes, Republicans for a few decades now have flirted with the unitary executive theory — the idea that the president’s authority over the executive branch is absolute, particularly in national security contexts and when it comes to hiring and firing. (Well, to be perfectly correct, Republicans flirt with the unitary executive theory only when Republicans hold the presidency. When Democrats do, the constant drumbeat from the GOP is that the president should have very little authority.) But even the unitary executive theory hasn’t gone so far as to say that the president can do things like unilaterally close government agencies. Even when Project 2025 called for radical changes to USAID, for example, they didn’t argue it could just be closed.
The only way Trump’s actions can be justified is if you start from the principle that simply by electing him president, the country gave him complete authority to do anything he’d like. But that justification renders Congress entirely superfluous. Why go through the charade of making policy and negotiating budgets if the president can just ignore laws when he wants to? This view makes Congress nothing more than an advisory body.
The arguments being made by the Trump administration boil down to one thing: if Trump wants to do it, he gets to. Russ Vought has been explicitly arguing for years that Trump should not have to worry about whether something is legal, whining about pesky lawyers who “come in and say it’s not legal, you can’t do that, that would overturn this precedent, there’s a state law against it.”
So what is the role of the judicial branch in this brave new world? What happens when a federal court holds that Trump doesn’t have the power to do anything he wants? Dozens of lawsuits over Trump’s overreach have been filed, and federal courts have already blocked his birthright citizenship order, paused his spending freeze, and delayed the deadline for mass federal employee resignations.
But Vice President JD Vance is already floating the idea that the administration should simply ignore those lawful court rulings. Over on X, Vance declared yesterday that “judges aren’t allowed to control the executive’s legitimate power.” He also reposted tradcath conservative Harvard Law professor Adrian Vermeule’s complaint that a ruling barring the DOGE rampage through Treasury’s payment systems was “judicial interference with legitimate acts of state” and a violation of the separation of powers.
Sen. Tom Cotton, meanwhile, called for the Obama appointee who issued that ruling, Judge Paul Engelmeyer, to be “forbidden by higher courts from ever hearing another case against the Trump admin.”
The administration's stance appears to literally be that federal laws are irrelevant in the face of Trump’s wishes and the courts can’t stop him. If Congress and the judiciary no longer check or balance the executive branch, no separation of powers is left. That’s a complete rewiring of America. That’s tearing democracy down to the studs and rebuilding something entirely different and much worse in its place.
As much as it might seem overly dramatic to say, this sounds a lot like dictatorship, and a despotic one at that.
That’s it for today
We’ll be back tomorrow with a special Tuesday edition. If you appreciate today’s PN, please support us by signing up. Paid subscribers make this newsletter possible.
Thanks for reading.
Obedience relies on legitimacy. With the Legislative branch taking a knee and the Executive branch ignoring the Judiciary, the federal government itself is no longer legitimate. States should start treating it as such. Don't remit taxes or any other form of funding. Don't obey federal dictates. Until all three branches of the federal government are performing their constitutionally-defined roles, they can pound sand.
Cooler heads warned of this during the campaign. Musk paid billions to obfuscate this an buy himself a Presidency. Nothing more or less. Thanks to the greedy morons who bought into this nonsense.